Eyeeez only 2 Vaccine

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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 1788. 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, just as occurs with disputes over the
interpretation and application of legal codes and
rules. 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

17
may be legally unsettled, though in some
instances there may still be strong legal
arguments 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 individual vaccine
recipients. In fact, states are probably not 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

6 See, e.g., Jacobson v. Mass., 197 U.S. 11 (1905).
7 As far as the author knows, this matter has never been
litigated, so the matter is legally undetermined.
8 Presently, Mississippi and West Virginia offer only
medical exemptions. Jacobson may be the reason that all
states now offer a medical exemption.
18
exercise of religious exemptions to immunizations
under the U.S. Constitution, but those rights have
malleable boundaries that: 1) are subject to
modification at any time, 2) can vary with
geographic location or with local conditions such
as disease outbreaks or an impending or actual
threat of biological warfare attack, and 3) are not
precisely defined, legally, 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, then, people
exercising a vaccine religious exemption under
state law would lack the 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
19
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 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 ruled
unconstitutional or modified by the state
legislature.
9 What our rights “should be” at any
given time is not always what the law currently is.

9 A discussion about how one might approach an
B. Federal Statutes

The U.S. Congress has no authority beyond
that granted it by the U.S. Constitution. The U.S.
Congress lacks authority to legislate vaccine
requirements or exemptions for state citizens, so
that task falls to the states.
10 Each state,
therefore, individually enacts vaccine legal
requirements and exemptions for its 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

exemption in states requiring membership in an organized
religion, when one does not belong to such a religion, is
discussed below.
10 However, states generally enact vaccination laws
consistent with recommendations of the ACIP and CDC,
federal agencies referred to below. When the federal
government can’t control the states directly, it often exerts
powerful influence by requiring specific action of states for
states to qualify for related federal funding.
20
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 regulations 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” (which may include religious
objections),
12 and provide for the tracking of
separations resulting from refusal to participate in
the anthrax vaccine immunization program.
13

11 8 U.S.C. § 1182(g)(2)(C).
12 10 USC § 1110 Anthrax vaccine immunization program;
procedures for exemptions and monitoring reactions.
13 10 USC § 1178 System and procedures for tracking
separations resulting from refusal to participate in anthrax
vaccine immunization program.
(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
employers’ requirements for religious reasons
may have support in the federal statutes. 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 may also
apply to college students in healthcare programs
required to do clinical work in a hospital or other
healthcare facility.

14 See also the section below on OSHA, under Federal
Administrative Law.
21
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 claimed a religious
exemption.

Finally, in 1993 Congress passed the
Religious Freedom Restoration Act, 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
furthering that compelling governmental
interest.”
15 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 below on state statutes).

15 42 U.S.C. § 2000bb et seq. (Title 42, Chapter 21B)
16 See Wikipedia’s historical summary at

http://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act

22
C. Federal Administrative Law

Administrative law refers to the body of law
created by administrative agencies—govern-
mental bodies charged with administering and
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), which describes
itself as the “United States government’s principal
agency for protecting the health of all Americans
and providing essential human services,

17 The term ‘administrative code’ is synonymous with
‘regulations’ and ‘administrative regulations’ for purposes
of this e-book.
especially for those who are least able to help
themselves,”
18 has over 300 programs. Among
those concerned with vaccines are:

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);

18 United States Department of Health & Human Services,
HHS: What We Do, at

http://www.hhs.gov/about/whatwedo.html/.

19 Department of Health and Human Services, Centers for
Disease Control and Prevention, About the CDC, at

http://www.cdc.gov/about/default.htm.

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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

20 U.S. Department of Health and Human Services,
National Institutes of Health, About NIH, at

http://www.nih.gov/about/.

21 National Immunization Program, ACIP Advisory
Committee on Immunization Practices, at

http://www.cdc.gov/vaccines/recs/acip/default.htm.

contraindications. The ACIP is the only entity in
the federal government that makes these
recommendations, 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), and the Department of
Justice (DOJ), which are executive agencies that
investigate and enforce Title VII claims. Such
claims could involve disputes where, e.g., an

22 The AAP is a non-profit organization founded in 1930. It
presently has about 60,000 members, with headquarters in
Illinois.
23 The AAFP was founded in 1947. It presently has about
94,000 members, with headquarters in Kansas.
24
employee objects to employer-required
vaccinations in the workplace for religious
reasons;

6) The U.S. Department of State Foreign Affairs,
which oversees immigrant vaccine requirements
and exemptions. Volume 9 of that Department’s
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.”
24 The
person or parent must complete Form I-601,
Application for Waiver of Grounds of
Excludability;
25 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

24 9 FAM 4.11 PN4.3 Waiver under INA 212(g)(2)(c).
25 Available from the USCIS website under “Immigration
Forms” at http://www.uscis.gov/portal/site/uscis.
or moral convictions, and 3) That the applicant is
opposed to vaccinations in any form;
26, 27

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.”
28 Air
Force personnel may only be granted temporary
religious exemptions.
29 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,

26 9 FAM 4.11 PN4.4 Applying for INA 212(g)(2)(c)
Waivers.
27 Form I-601 applies to international child adoptions.
28 Army Regulation 40–562, BUMEDINST 6230.15A, AFJI 48–110
CG COMDTINST M6230.4F, section 2-6(b)(3)(a) at

http://www.army.mil/usapa/epubs/40_Series_Collection_1.html

29 However, it is not clear exactly what the military means
by “temporary” here.
25
who must process them “in accordance with 29
CFR 1605 and component and local policies.”
30
Part 1605.1 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 does belong
to one. Part 1605.2 provides details about the
“reasonable accommodation” required by Title VII
of the Civil Rights Act of 1964 (see section on
federal 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

30 Code of Federal Regulations, Title 29—Labor, Part 1605—
Guidelines on Discrimination Because of Religion, Chapter XIV—
Equal Employment Opportunity Commission.
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).”
31 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, antibody testing has revealed
that the employee is immune, or the vaccine is

31 OSHA’s Mission at

http://www.osha.gov/oshinfo/mission.html.

26
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.”
32

When conflicts arise involving administrative
rules and regulations, they usually have to be
addressed at an administrative level 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
residents and the USCIS
33 in the case of

32 See 29 CFR 1910.1030(f) and subparts.
33 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
immigrants—most conflicts concerning vaccine
exemptions 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
hearings before one can file a lawsuit in state or
federal court is known as the “exhaustion
doctrine.” That is, until one exhausts one’s
administrative remedies, one cannot pursue the
matter in state or federal court. There are
exceptions where administrative conflicts may be
taken directly to state or federal court. One such
instance is discussed in a Florida appellate court
opinion involving a vaccine religious exemption
dispute, as noted below in the section on State
Courts and State Precedent.

and naturalization adjudication functions and establishing
immigration services policies and priorities.
27
D. Federal Courts and Federal Precedent

The federal court system includes:
1) Ninety-four district courts (federal “trial” or
“lower” courts), with one or more districts in
each state, the District of Columbia and Puerto
Rico;
34
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, which jurisdiction
encompasses the entire United States. The
U.S. Supreme Court may review decisions of

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 that could be
involved in vaccine exemption disputes.
the federal circuit
courts and state
supreme
courts.
36

Since vaccine
religious exemption
disputes involve a mixture of state and federal
law, legal disputes concerning them may 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
illustrated by the many examples discussed
below.

Important federal and state appellate court
rulings are documented in published opinions that

36 See http://www.uscourts.gov/ for more on the federal
court system.

Federal Courthouse in Raleigh, NC

28
serve as legal precedent. These published
opinions serve as “binding precedent” for lower
state and federal courts within the jurisdiction of
the court issuing the opinion. This means that
these lower courts must rule consistent with these
published 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
those lower courts are free to rule in a manner
that may or may not be consistent with the higher
court issuing the opinion. Indeed, some court
opinions have little or no 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.

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
Precedent is the means by which courts
strive for consistency in their rulings, pursuant to
the judicial doctrine known as “stare decisis” (“to
stand by that which is decided”). Legal precedent
serves to provide 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

state and federal law, federal law generally supersedes
state law.
29
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.
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 strong opposing arguments, disputes may
require court proceedings to be resolved.

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 are
correspondingly undefined and subject to
interpretation and dispute. Unfortunately, this is
the case for the majority of the country with regard
to vaccine religious exemptions, 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 persuasive precedent on vaccine
religious exemptions. So, at least some positions
30
supported by persuasive precedent are strong
ones where vaccine religious exemptions are
concerned, despite the fact that the law in
jurisdictions without any binding precedent is
technically unsettled with regard to many specific
situations. 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 the same or 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 precedent, so you can make informed
decisions about asserting and exercising your
rights accordingly.

THE LEGAL DEFINITION OF RELIGION

Before discussing specific federal court
cases on vaccine religious exemptions, it is helpful
to see 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. 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
31
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.

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, 165-
66, 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).
THE LEGAL LANDSCAPE:
Jacobson v. Massachusetts
41

A 1905 U.S. Supreme Court case set some
vaccine legal boundaries still valid today.
Jacobson was a Massachusetts man who refused
the small pox vaccine during a local outbreak due
to his having had a serious adverse reaction to the
vaccine as a child. He lost the case, because he
did not present medical evidence that he was not
a fit subject for vaccination at the relevant time 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 came before the Court, that the

41 Jacobson v. Mass., 197 U.S. 11 (1905)
42 Prince v. Com. of Mass. 321 U.S. 158 (1944)
32
Constitution does not require states to offer a
religious exemption. That 48 states and all federal
jurisdictions do is testament to the importance of
religious freedom in the United States.)

Some parts of the 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
media dictates law, regardless of the truth or
intent of the information disseminated. Jacobson
went on to say that the courts could not second-
guess the legislature, which presumably
considered alternative vaccine theories when it
concluded that vaccines were necessary. So, it
appears that those who disagree with vaccine
requirements can’t ask a court to consider the
evidence of harm, they must take their case to the
legislatures and convince them to change the
laws.

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,
33
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.
43 However,
more recent rulings in other federal district courts
appear to be inconsistent with this ruling, so future
cases involving this question would likely have a
different outcome. In fact, Kentucky no longer
requires membership in an organized religion to

43 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

http://www.publichealthlaw.net/Research/PDF/vaccine.pdf.

refuse immunizations for religious reasons.
44
(Western District of Kentucky, 1976).

2) Ohio parents whose objection was based on
“chiropractic ethics” were denied a religious
exemption.
45 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.”
46 The court analyzed the
case using a two-prong test: a) Are the beliefs in
question religious in nature?, and b) Are they
sincerely held? Under this ruling, our U.S.
Constitution’s First Amendment supports a
vaccine religious exemption, by way of the First

44 KY. REV. STAT. ANN. § 214.036 (2005)
45 Id.,(citing Hanzel v. Arter, 625 F. Supp. 1259 (S.D. Ohio,
1985)).
46 Sherr, 672 F. Supp. at 98.
34
Amendment’s Free Exercise Clause, in any state
offering one, whenever these two conditions are
met.

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.”
47 (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
perceive[d] as a ‘genetic blueprint’” was deemed

47 Id. at 99.
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 membership
requirements, no services, and no traditional
doctrine, advocating instead a “natural
existence.”
48 (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.”
49

48 Mason v. General Brown Cent. School Dist., 951 F.2d
47 (2
nd Cir. 1988).
49 Lewis v. Sobel, 710 F. Supp. 506 (S.D.N.Y. 1989).
35
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,”
50 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.”
51
(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

50 Id. at 511 (quoting Mason v. General Brown Central
School Dist., 851 F.2d 47 at 54 (2d Cir. 1988)).
51 Id. at 515 (quoting Allanson v. Clinton Cent. School
Dist., No. 84-174, slip. op. at 15 (N.D.N.Y. May 7, 1984)).
Freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”
52

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 the
opposition’s testimony that “there is nothing in the
teaching of the Jewish religion that would
proscribe immunization for children . . .”
53 (Eastern
District of New York, 1994)

7) Again in New York: “The beliefs need not be
consistent with the dogma of any organized

52 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)).
53 Id. at 655 (E.D.N.Y. 1994).
36
religion, whether or not the [parents claiming the
exemption] belong to any recognized religious
organization.”
54 (Eastern District of New York,
2000)

8) 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
Amendments. 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

54 Farina v. The Board of Education, 116 F. Supp.2d 503,
507 (S.D.N.Y. 2000) (citing Sherr, 672 F. Supp. at 91).
establish a comprehensive immunization program,
the religious exemption portion was stricken with
the balance of the immunization statute remaining
in full force and effect.
55 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.
56 (Western District of
Arkansas 2002)

9) In a New York federal district court case, the
New York religious exemption statute was held
not to violate the First Amendment’s

55 McCarthy v. Boozman, 212 F.Supp.2d 945 (W.D.Ark.
2002).
56 The Religion Case Reporter, Arkansas, Ark. Code Ann.
§ 6-18-702 at

http://www.paradigmpub.com/docs.asp?id=&pf=1&case=x

arkansas.
37
establishment clause.
57 (Northern District of New
York 2002)

10) 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 pending 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

57 Turner v. Liverpool Cent. School, 186 F.Supp.2d 187
(N.D.N.Y. 2002).
well.
58 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)

58 Hadley v. Rush Henrietta Central School Dist., 409
F.Supp.2d 164 (W.D.N.Y. 2006).
38

County Courthouse in
Pittsboro, NC
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 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
of conscience.”
59 That’s strong language. While it
would probably not 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.
60 Religious rights language in other

59 N.C. Const. Art. I, § 13.
60 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
state constitutions may similarly
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

As mentioned above, vaccine laws for state
residents are enacted at the state level. All 50
states provide medical exemptions, 48 religious

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.
39
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 organized
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 below.)

States that don’t require membership in an
organized religion may have a more accessible
exemption, but sometimes deceptively so. For
40
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.
61

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
are exempt. However, as written, this statute
suggests the possibility that the state could make

61 N.C. Gen. Stat. § 130A-157 Religious exemption.
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 statute.
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
mean only that if a local official does question an
exemption applicant’s beliefs and denies the
41
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 often 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 many people both
for and against vaccination requirements, 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.
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 other situations, though,
where one needs to document an exemption even
though doing so is not be required by law, for
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
42
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 that is
not legally required. Putting your exemption in
writing gives the physician something tangible to
put in the patient’s file to clarify for 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 itself is the leading
cause of death and injury in the United States,
62
and lawyers aggressively pursue high-damage
malpractice suits. Some doctors’ medical
malpractice insurance premiums alone are many

62 See “Death by Medicine” at

http://www.webdc.com/pdfs/deathbymedicine.pdf.

times that of some lay people’s gross yearly
incomes.
63

You should take care to read your state’s
vaccine religious 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 raise concerns on their
part 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 religious

63 See, e.g, http://www.gao.gov/new.items/d03702.pdf, 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.
43
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 your 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 claims 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 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.
64 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 all of 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

64 A detailed explanation of this is beyond the scope of this
e-book. Insight may be gained by reading the state and
federal case law cited in this publication, or by consulting a
knowledgeable attorney.
44
and employees are in Chapter 131E, Healthcare
Facilities and Services, completely separate and
apart from the general 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 this point, North
Carolina’s Chapter 131E states (curiously):
“No individual shall be required to receive 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”
65
[emphasis added]. This statute provides medical,
religious, and philosophical or personal
exemptions for nursing home residents, while

65 N.C. Gen. Stat. § 131E-113(e).
other North Carolina residents 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.”

Finally, as noted in the Federal Statutes
section above, several states have enacted their
own Religious Freedom Restoration Act 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 and TX.
66 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)

66  http://www.churchstatelaw.com/statestatutes/religiousfreedom.asp
45
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
67 that “exists to promote public health
through the identification and elimination of
vaccine-preventable diseases…”
68 It consists of
four units: Vaccine Services; Data Collection &
Analysis; Field Services; and Communication,
Outreach & Professional Development.  Other

67 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.
68 dhhs, Immunize North Carolina, at

http://www.immunizenc.org/.

states likely 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.”
69 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 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.

69 NC-DHHS, Immunize North Carolina, Medical and
Religious Immunization Exemptions, at

http://www.immunizenc.org/Exemptions.htm.

46
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 Health) address application of the religious
exemption with regard to school enrollment.
However, it doesn’t explicitly 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 generally in any medical or other
non-school-related contexts. 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.
70 In states where
forms are required, they are probably available
from local health departments, and possibly those
departments’ websites. If you are uncertain
whether or not a form is required, a call to your
local health department should resolve the
question. Or, you can consult your state’s health

70 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
department website, your state’s statutes and
regulations at a public library, or an attorney.

It’s probably best not to use a form if one
isn’t required, and if one is, use only one
authorized by the state or a state agency.
Otherwise, you may not be in compliance with the
law, and your exemption claim at risk accordingly.
Reportedly, some people have used unofficial
forms or affidavits successfully, and been allowed
to refuse required vaccinations. However, those
people may have inadvertently subjected their
exemption claim to future scrutiny and challenge,
if those forms do not strictly comply with their
state’s requirements. So, it is always simplest and
best to follow the requirements set out in the
statutes and regulations in your state as closely as
possible, as that makes it easier for the people
processing your claim to see that you are in
compliance with the law, and it reduces the
prospect that you will be scrutinized or challenged
at the time you submit your claim or at any time in
the future.

Usually, state statutes and regulations are
clear and their instructions straightforward, but not
always. One state that requires a written letter to
exercise a religious exemption has instructions on
an agency website that are 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.
71

States’ administrative regulations provide
many of the rules and details pertaining to the
implementation and enforcement of statutory

71 The author has twice e-mailed the department regarding
the inconsistency, but the department has not responded.
48
immunization requirements, including exemptions.
For example, 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,
7) Local health departments (which are required to
enforce immunization laws for local schools and
daycares, and to 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.
72

Of course, 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

72 10A NCAC 41A .0403 Non-Religious Personal Belief No
Exemption.
49
merely provide implementation and enforcement
components to, and within the bounds of, the
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 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 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 may be irrelevant 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

North Carolina Justice
Building in Raleigh, NC
50
are infrequent, or that few people involved in
disputes have the resources to pursue an appeal
of a lower court’s ruling.
73 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 not 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
absence 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

73 Appeals can be costly emotional and financially, and can
take months or years to reach conclusion.
were denied the ability to declare a religious
exemption from immunizations for their children.
Because this case involved an uncommon
situation, it provides little if any 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.
74)

74 In Re Stratton, 153 N.C. App. 428, 571 S.E.2d 234
(2002).
51
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
and severable in Massachusetts in 1971,
75
Mississippi in 1979,
76 and Maryland in 1982,77 due
to requirements involving church membership.
Massachusetts and Maryland have since passed
new religious exemption legislation. The same

75 Dalli v. Board of Education, 358 Mass. 753, 267 N.E.2d
219 (1971).
76 Brown v. Stone, 378 So.2d 219 (Miss. 1979).
77 Davis v. State, 294 Md. 370, 451 A.2d 107 (1982).
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 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 until it is
overruled by the Mississippi Supreme Court or a
52
federal court. Until such time, Mississippi may not
be able to enact 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.
78
This case serves as a good point of reference for
the distinction between beliefs that qualify as
‘religious’ and those that don’t, for vaccine
religious exemption purposes. 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

78 Syska v. Montgomery Co. Bd. Of Educ., 45 Md. App.
626, 415 A.2d 303 (1980).
exercise of religion.” Citing the 1905 Jacobson
U.S. Supreme Court case,
79 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.

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.
80 This case illustrates the
common yet arguably erroneous belief that non-
immunized children pose a significant threat to

79 See footnote 4 above.
80 Maricopa County Health Dept. v. Harmon, 156 Ariz. 161,
750 P.2d 1364 (1987).
53
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, and
many outbreaks have reportedly started in
vaccinated children, so the case might 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
claimant’s beliefs were not “sincerely held.”
81
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

81 Matter of Christine M., 157 Misc. 2d 4, 595 N.Y.S.2d 606
(N.Y.Fam.Ct. 1992).
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
54
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.”
82 Under these legal
standards, the state proved its case and the
exemption was denied.

6) In a 1998 Florida case (that was the exception
to the exhaustion doctrine mentioned above—this
case successfully bypassed administrative
proceedings and went straight to state court), the
court found the Department of Health had
exceeded it authority in questioning the religious

82 Lynch v. Clarkstown Cent Dist, 155 Misc.2d 846, 590
N.Y.S.2d 687 (1992).
exemption claim.
83 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 such an inquiry.
84 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

83 Department of Health v. Curry, 722 So.2d 874 (Fla.App.
1 Dist. 1998).
84 LePage v. State, 2001 WY 26, 18 P.3d 1177 (2001).
55
student by requiring more health information from
his parents than the unambiguous statute
required.
85 Like in the preceding religious
exemption case, Wyoming does not have
discretion to scrutinize medical exemption claims,
once a licensed physician makes the
recommendation.

9) 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.
86

10) In a 2002 North Carolina case, parents whose
children were adjudicated neglected and

85 Jones v. State Dept. of Health, 2001 WY 28, 18 P.3d
1189 (WY 2001).
86 In Re C. R., 257 Ga. App. 159, 570 SE2d 609 (2002).
dependent were not able to exercise a religious
exemption 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].
87 Note
how this contrasts with the next case.

11) In a 2007 Arizona case, the parent of a child
adjudicated dependent (i.e., Child Protective
Services had taken custody of the child) retained
the right to exercise a religious exemption to
immunizations for the child.
88 This result came
from the court’s strict interpretation of the
applicable state codes. Note how this contrasts
with the previous two cases…

87 In re Stratton; 153 N.C. App. 428, 571 S.E.2d 234
(2002).
88 Diana H. v. Rubin, 171 P.3d 200 (AZ 2007)
56
IV. PRIVATE SCHOOLS AND DAYCARES

There is often confusion as to whether or not
private schools and daycares have to honor
vaccine exemptions. The answer may vary 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.”
89, 90 The Opinion noted

89 http://www.oag.state.tx.us/opinions/opinions/50abbott/op/2006/pdf/ga0420.pdf
90 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 that would
not otherwise apply.
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 Attorney 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
57
times, unintended consequences arise 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 seems
particularly ironic that a religious exemption may
not be allowed for a child enrolling in a private
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.  A more
pertinent question may be whether or not federal
First Amendment rights apply, as the federal
Constitution applies to the federal government,
and to state and local governments to the extent
that the so-called “fundamental rights” of the Bill of
Rights have been held to apply to the states by
way of the due process clause of the Fourteenth
Amendment (as discussed above). So, the “free
exercise” of religion guaranteed by the First
Amendment may not apply to private schools.
However, where private entities accept
government funding, the Constitution may be held
to apply, 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 statutes in each state’s laws, and
the applicability of First Amendment rights (and
possibly that of state Constitutional rights as well)
may depend on whether or not the private
institution accepts government funding.
58
V. IMMIGRATION AND FOREIGN ADOPTION

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
using USCIS Form I-601.
91 They must also show
that they (or their parents, if minor children) are
opposed to vaccines in any 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 friends or relatives corroborating
the applicant’s beliefs and/or non-vaccination

91 At last check, the USCIS fee for this application was
$545. This fee has increased repeatedly and significantly
in recent years.
history, to show that there is a history of
consistent application of the beliefs.

The USCIS policy regarding waiver of the
immunization requirements was based on a body
of legal precedent that includes some of the
federal court cases listed above concerning
vaccine exemption disputes with public schools.
So, a review of those cases may be helpful. Also,
while the regulations use the phrase “moral
convictions,” this does not necessarily create a
philosophical basis for waiving the immunization
requirements. To the best of this author’s
knowledge, there is no legal authority defining the
phrase “moral objections” in this context, which
leaves its meaning here difficult to determine. It
may be that this phrase was included to keep the
USCIS out of the business of having to determine
whether beliefs claimed to be religious are in fact
59
religious or not, as this may risk an inappropriate
involvement of government in religion. As some
of the state and federal cases above reveals,
some claimed religious beliefs were found by the
courts not to qualify as ‘religious’ for purposes of
the vaccine religious exemption in question. For
these reasons, it is probably best to apply based
on religious objections if possible.

Other reasons to consider applying for the
USCIS waiver based on religious objections
include the fact that some states don’t provide
exemptions for philosophical reasons; so, if you
obtain an exemption to immigration on non-
religious grounds but will be living in a state that
offers only religious exemptions, your immigration
exemption could be inconsistent with your
religious exemption later at the state level, and
that could potentially cause confusion. In addition,
religious exemptions are preferred to philosophical
exemptions generally, as religious exemptions
come with First Amendment, Constitutional
support that is not available for an objection based
on moral convictions. There are situations that
could arise in which this distinction would be
significant, as noted above.

Finally, it may be best to work with an
attorney when applying for the I-601 waiver. The
USCIS has a manual telling them what to look for
that is not entirely consistent with what the
regulations require. One of the author’s clients
failed when applying on his own, despite having
followed all of the regulations correctly. When
repackaged according to the USCIS manual with
the author’s help, the waiver was approved. An
experienced attorney can also provide valuable
assistance with developing effective statements of
religious beliefs opposed to immunizations.
60
VI. HEALTHCARE EMPLOYEES AND STUDENTS
Healthcare employees are often required to
obtain vaccines as a condition of employment.
However, there may be state and/or federal laws
in support of their right to refuse the vaccines if
they have religious objections to the vaccine
requirements.

Here, the situation usually does not involve
a state law requiring the vaccines, and therefore,
no exemption law providing an exception to such
a requirement. Rather, this is most likely a matter
of hospital (or other facility) policy.

As noted above, Title VII of the 1964 Civil
Rights Act 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.

The Title VII argument favoring the
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. Of
course, hospitals can counter that with the
assertion that in their particular healthcare setting,
immunizations are more necessary than in the
61
general population, so the Title VII argument,
while strong, is not a guaranteed win.

Hospital employees are also often “required”
to get the Hepatitis B vaccine. As noted above,
this is really not a formal requirement, but a
recommendation by OSHA, a federal agency.
92 As
noted above in the section on federal agencies,
there is an opt-out form that employees can sign
to refuse the Hepatitis B vaccine.

Finally, students in some college programs
may be required to do clinical work in hospitals or
other clinical healthcare settings to obtain a
degree. Even though students may not be
compensated for their hospital time and may not
be “employees” in the usual sense of the word,
Title VII may still apply (it applies to “apprentices”).

92 As a federal agency, OSHA lacks authority to require
immunizations of state residents.
This situation may be further complicated
depending on whether or not there are applicable
state laws requiring post-secondary school
immunizations generally (not all states require
college students to be immunized). Other
considerations include whether or not the
student’s vaccination requirement is based on the
hospital’s employee policy, and what the hospital’s
policy regarding religious tolerance is generally.

Another consideration is whether or not the
hospital is public or private—and if private,
whether or not it accepts public funds. If the latter
or a public institution, federal First Amendment
rights may apply, and an argument that you may
refuse vaccines for religious reasons be made
accordingly. Furthermore, federal and state
Religious Freedom Restoration Acts (discussed
above) or similar legislation may apply in some
instances.
62
There are often strong legal arguments
supporting the right of employees and students to
refuse vaccines for religious reasons in a hospital
or other clinical setting, but this does not
guarantee that the facility will quickly cooperate
with your non-vaccination position. For example,
to the best of the author’s knowledge, there is no
legal precedent applying Title VII to an employee’s
religious objection to immunizations specifically,
so the application of Title VII to religious
objections to vaccinations is still technically
unsettled law and subject to debate. Therefore,
the hospital may take the position that they do not
have to allow the employee to refuse vaccinations
unless and until ordered to do so by a court (in the
author’s experience, some hospitals cooperate
with religious objections to immunizations, some
don’t). For this reason, it may be best to involve
an attorney up front in these situations. If you
have taken the step to involve an attorney, the
healthcare facility may take your assertions more
seriously (it’s easy to say ‘no’ in legal matters to a
non-attorney). It sends the message that you take
the matter seriously and may be willing to fight for
your rights if necessary. Many times, the best way
to avoid court is to be fully prepared for it—and to
send a message to your prospective adversaries
that tells them that you are so prepared (whether
you intend to follow through or not).

63
VII. 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.

International health concerns are governed
by the World Health Organization’s International
Health Regulations (2005), a legally binding
instrument of international law last revised in
2005. These regulations govern the role of the
WHO and its member nations
93 “to prevent,
protect against, control and provide

93 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.
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.”
94 The U.S. officially accepted
the revised IHR in 2006, and these regulations
officially took effect in 2007.

According to the CDC, the only vaccine
required by the IHR for international travelers is
the yellow fever vaccine, for persons traveling in
certain countries in sub-Saharan Africa and
tropical South America.
95 The only recognized
exemption is medical. The CDC lists additional

94 IHR art. 2. See also http://www.globalhealth.gov/ihr/ .
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.
95 http://wwwn.cdc.gov/travel/content/vaccinations.aspx.
See also IHR Annex 7, REQUIREMENTS CONCERNING
VACCINATION OR PROPHYLAXIS FOR SPECIFIC
DISEASES.
64
“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,
96
so vaccines can’t be “compelled” on an unwilling
recipient absent “evidence of an imminent public
health risk.”
97 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 due to conditions they
deem to pose a significant public health risk, and
the traveler refuses to consent to them.

96 See IHR art. 23, para. 3.
97 IHR art. 31, para. 2.
Furthermore, the IHR requires that travelers to 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.”
98The
IHR also provides for “suspect” persons be
quarantined.”
99

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

98 IHR art. 23, para. 4.
99 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…
65
with such measures . . .”
100 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
101
as well as the IHR. Accordingly, international
travelers should realize that successfully avoiding
vaccines at the outset of a trip does not
necessarily mean that vaccines won’t be an issue
during the trip, and that quarantine may be an
issue for non-vaccinated persons.

100 IHR art. 32.
101 42 CFR 71.1 et seq.
Vaccine recommendations are frequently
mistaken 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.

66
VIII. EMERGENCIES: FROM LOCAL OUTBREAKS TO PANDEMICS

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 normally
available.

The most common of these situations
concerns local childhood infectious disease
outbreaks. The CDC defines “outbreak” as when
the “observed number of cases exceeds the
expected number,” which in recent years has
meant that a single disease case qualifies as an
“outbreak” compared to much larger numbers in
decades past. Reportedly, authorities have even
declared an “outbreak” before a single suspected

case has even been confirmed. Once an outbreak
is declared by a local or state health authority,
though, laws pertaining to outbreaks take effect.

The Jacobson case discussed above
supports 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. While
specific laws will vary from state to state, most
states 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
67
of the disease in question.
102 This is required even
if the outbreak occurs in vaccinated children,
which is reportedly often the case. 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 the author’s knowledge.

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

102 E.g., 21 days in the case of chicken pox.
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 state’s
discretion, conditions warrant doing so—to the
extent that state laws have been enacted granting
the state this authority.

The more severe hypothetical situation is
one involving threats concerning biological
warfare threats or attacks, and emergency
infectious disease epidemics or pandemics. These
may involve any one or a combination of local,
68
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 drafted 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,
103 the Model Act would grant states
the authority, in a declared emergency, to
vaccinate persons “as necessary” and to treat
persons exposed or infected (unless reasonably
likely to cause serious harm); to isolate or
quarantine persons unable or unwilling for

103 See the Center for Law & Public Health’s Legislative Surveillance Table,

http://www.publichealthlaw.net/MSEHPA/MSEHPA%20Surveillance.pdf

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.

While the Act recognizes that objections to
emergency vaccine mandates for philosophical
and religious reasons may occur, during
emergencies, those who are medically exempt or
who refuse vaccines may be subject to isolation or
quarantine, and in locations of the state’s
69
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 this 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.
But ultimately, a court would probably have to
decide this on a case-by-case basis.

The American Civil Liberties Union (ACLU)
has criticized the Act for failing to “include basic
checks and balances,” going “well beyond
bioterrorism,” and lacking “privacy protections.”
104
The language employed is sweeping, and many of

104  http://www.aclu.org/privacy/medical/14857res20020101.html
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”
105 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
diseases from coming into the U.S. from foreign
countries. However, “the HHS  [Health and
Human Services, a federal agency] Secretary may
accept state and local assistance in the enforce-
ment of federal quarantine regulations and may
assist states and local officials in the control of

105 http://www.cdc.gov/ncidod/sars/factsheetlegal.htm
70
communicable diseases.” So, the lines may blur in
the event of actual emergencies—it appears that
government authorities on any level may be
involved in matters on their own or any other level.

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.”
106 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

106 IHR art. 2.
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.”

Other IHR regulations address “points of
entry” from one country to another such as ports,
airports, and land border crossings.
71
IX. VACCINE CUSTODY DISPUTES

When parents separate or divorce and
disagree about whether or not to vaccinate the
children, pro-vaccine parents are quick to seize
the opportunity to use this dispute to try to gain
advantage in the custody case. Circumstances
vary widely in custody cases, and each must be
looked at individually to determine the strengths
and weaknesses of each party’s case. Therefore,
this section can provide only general information
about the vaccine-dispute component. How that
fits into a larger custody dispute is a matter that
should be addressed with an experienced family
law attorney, with the information in this section,
and in consultation with an attorney knowledge-
able about vaccine exemption rights.

With vaccine disputes, we can reasonably
anticipate that judges, attorneys, parenting
coordinators, guardians and others involved with
the case will most likely initially view the dispute in
terms favoring the pro-vaccine parent. However,
in many instances, the resolution to these
disputes is not as straight forward as first seems—
there are often strong legal arguments favoring
pro-exemption parents that have been successful
in resolving may vaccine custody disputes.
Regrettably, most family law attorneys and judges
are completely unaware of this. So, for your
benefit and theirs, a summary of these arguments
follows.

1. The Starting Point: The Child’s Best
Interests

Judges in custody disputes are concerned
with what’s best for the children. Most are likely to
72
see vaccine disputes as the proverbial “no
brainer”—of course the health of the children
requires that the children be vaccinated.
Attempting to take on this argument directly by
arguing that there’s scientific evidence that proves
that vaccines are harmful is most likely to fail,
despite the abundance of information supporting
this position, since the vast majority of doctors and
the medical community and prevailing societal
beliefs favor vaccination (not to mention the
difficulty of finding a medical doctor willing to
testify against vaccines).
107 In fact, since vaccines
are mandated by law, the question of their safety
and necessity is arguably a question that a
custody court can’t consider at all, since that
question was considered and resolved in favor of
vaccines by the state legislature when it enacted
vaccine requirements in the first place. So, that

107 This assumes absence of a medical condition that
would qualify the child in question for a medical exemption.
legislative decision should not (and per legal
precedent, arguably can’t) be second-guessed by
a judge in a custody case.
108 Therefore, the place
to address the safety and necessity of vaccines is
properly with the state legislature. In the
meantime, custody judges must rule consistent
with the law as it currently stands, and not as the
pro-exemption parent may wish it to be. To
prevent a child from being vaccinated in a vaccine
custody dispute, then, the pro-exemption parent
must approach the matter on a different level.

2. 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 a custody judge also applies
favorably to vaccine exemptions. Specifically, the

108 See, e.g., Jacobson v. Mass., 197 U.S. 11; 25 S. Ct.
358; 49 L. Ed. 643 (1905)
73
state presumably would not have enacted vaccine
exemption statutes if exercising an exemption
would pose a significant risk of harm to the
exempt person or their local community.
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. Underscoring this position
further is the fact that states have taken additional
steps to ensure that the exercise of vaccine
exemptions does not pose a significant health in
the future, by, e.g., enacting laws that require
unvaccinated children to stay home from school in
the event of a local outbreak.
109 Furthermore,

109 Even though the logic behind these laws may be
questionable. Outbreaks often start in vaccinated children,
so the risk would seem to be more one posed to
unvaccinated children by the vaccinated ones, if indeed
either child poses a risk to the other. If vaccines were
reliable, of course, unvaccinated children would pose no
risk to vaccinated children at all.
since states are not required to offer exemptions
other than medical, states may be able to
withdraw exemptions altogether at any time in the
event of a compelling circumstance warranting
such action. Furthermore, it is generally the state
or local department of health’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 dispute. Therefore, the issue
for purposes of a custody matter is, arguably, not
one of health risk to the child or community—that
determination is one for local and state health
authorities, who are empowered to take action as
needed to protect local communities.

In sum, if the dispute is allowed to be framed
erroneously as a health risk question, the pro-
vaccine parent is likely to prevail. The first step for
74
the pro-exemption parent, then, is to reframe the
question.

3. Framing the Dispute

First, it is critical that the pro-exemption
parent be arguing for an exemption for the child,
and not just for non-vaccination. There are only
two legal positions regarding vaccination—doing
the required immunizations, or exercising a legal
exemption. Any other position is not in compliance
with the law, and therefore doomed to fail.

The next step is to argue that the dispute is
not about the health of the child, as discussed
above (or that the health risk is negligible; see the
Fallback Position discussed below). The question
then becomes one of advantages and/or
disadvantages to the child outside of health
concerns. As pro-vaccine parents will invariably
center their arguments around health concerns,
they may have little to argue and be unprepared if
the pro-exemption parent is successful in
removing or minimizing the “health-risk” concerns
from the discussion, and this may, therefore, leave
the pro-exemption parent with the upper hand.

It is reasonable to assume that all other
things being equal, a judge would rule in favor of
the pro-vaccine parent, as that parent’s point of
view reflects the predominate views of the majority
of physicians and society in general. So, a pro-
exemption parent arguing for a philosophical
exemption may have a weaker position than one
arguing a religious exemption, unless there are
factors outside of the vaccine issue itself that
support the exemption parent, as religious
exemptions come with First Amendment
Constitutional support that philosophical
exemptions don’t have. As to other factors, Is
75
there a history of one parent being more attentive
to the healthcare needs of the child? Has one
parent done most of the doctor visits and taken
care of the child when sick? Etc. While one might
argue that since states that offer a philosophical
exemption allow parents to make up their own
minds, the pro-exemption parent’s position that
vaccination poses too great a risk of harm to the
child, or that vaccines should be used only when
there is a present risk (local outbreak or declared
emergency) is, implicitly, endorsed by the state,
but such an argument may fail against the
contrary, predominantly held view of the medical
community—and judges tend to err on the side of
caution with regard to a child’s best interests. So,
with philosophical exemptions, it may be better to
put the vaccine decision within the larger context
of healthcare decisions generally, if available
evidence suggests that the pro-exemption parent
is, overall, the better parent to exercise those
decisions. However, a stronger position for a pro-
exemption parent would come from the weight of
Constitutional rights that apply to a vaccine
religious exemption, so if the pro-exemption
parent has both religious and non-religious
concerns, it may be better to emphasize the
religious ones.

4. The Weight of First Amendment Rights

Don’t underestimate the value of First
Amendment rights as they pertain to religious
freedom and vaccine religious exemptions—they
are much more than mere ephemeral, abstract
concerns. 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
76
constitutes irreparable injury.”
110 So, if the health-
risk question is dispensed with, or even
successfully minimized, the “irreparable harm”
standard presents a very strong argument in favor
of the pro-exemption parent. 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.”

When viewed this way, the question can
ultimately be framed as a balancing of states’
“best interests” standards in custody cases and
the First Amendment’s “free exercise” of religious
clause. Since federal law generally supersedes
state law, states have tended to allow “free
exercise” to prevail up to the point that doing so

110 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)).
causes harm or presents an imminent risk of harm
to the child.
111 Routine vaccines are administered
for a different purpose—that of addressing a
hypothetical future risk of harm. States would not
offer a religious exemption to immunizations if the
exercise of the exemption would create a present
risk of harm. And since states have back-up
measures in place in the event that an
unvaccinated person should, in the state’s
discretion, pose a risk of harm at some future
point,
112 the pro-exemption parent should prevail
where there is a history of religious exemption on
the part of the pro-exemption parent, provided
there are no other facts that on balance would
compel a different outcome.

111 In re the Marriage of Weiss, 42 Cal.App.4th 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.
112 E.g., state laws allow immunizations to be required of
exempt children and/or require exempt children to stay
home during an outbreak or emergency.
77
5. The Fallback Position: Still Strong

Given the widespread belief in the success
and necessity of vaccines generally, it is easy to
imagine that one could have some difficulty
convincing a judge that a dispute over vaccinating
the children is not about the health of the child,
despite the above analysis. However, since
vaccines do not concern the immediate health of a
child—rather, they concern a hypothetical future
risk of harm to the child in a location that has
(most likely) been largely disease-free for
decades—if one presents this fact along with the
“not a health-risk” argument, any confusion about
whether or not the dispute is a health-risk question
is diminished, as the question is still at worst one
of “immediate irreparable harm to First
Amendment rights” versus “hypothetical future risk
of exposure to disease” (which exposure may or
may not even result in illness, as not all persons
exposed to a disease develop symptoms), in a
largely disease-free society.

When the matter is properly framed, the pro-
exemption parent (especially if exercising a
religious exemption) is, arguably, often the
stronger position.

6. Can Courts Scrutinize a Parent’s Vaccine
Exemption?

Judges addressing vaccine custody disputes
may question the exempt parent about his or her
beliefs, so pro-exempt parents should be prepared
to answer the most obvious and likely questions.
Even if the pro-exemption parent is prepared for
these in advance, such questions can still pose
difficulty for the pro-exemption parent, so they
may be best avoided if possible. This may be
achieved by arguing that the custody judge lacks
78
authority to scrutinize the exemption claim. For
example, some state laws do not allow the state to
scrutinize exemption claims at all (see state
statutes and legal precedent above). If the state
isn’t allowed to scrutinize exemption claims, can a
custody judge? Arguably, ‘no.’ In states with laws
that do allow the state to scrutinize exemption
claims, the authority to do so may lie with a state
agency (e.g., the state health department), and
arguably not fall within the jurisdiction of a custody
judge. However, even if a judge rejects the
argument that she or he lacks such authority, but
the parent has been successfully claiming an
exemption prior to the matter being presented to a
judge, there is a legitimate question as to whether
or not the judge can or should second-guess the
state’s prior acceptance of the exemption. Here,
the longer the exempt parent has been claiming
an exemption that has been accepted by the
state, the more compelling may be the argument
that the judge can’t, or at least shouldn’t, question
the validity of the exemption claim.

7. Possible Questions from Judges

The exempt parent should be prepared to
answer questions about the exemption claim, in
case the above arguments are not successful or
there is no opportunity to present them. The
following is not by any means an exhaustive list of
questions a custody judge may ask, but 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
question puts the pro-exemption parent in a kind
of “damned if you do, damned if you don’t”
position, as the parent must choose between the
risk of being viewed as not willing to make proper
79
healthcare decisions for the child if she answers
‘no,’ and showing a lack of sincerity or consistency
with the claim of sincerely held religious objections
to immunizations if she answers ‘yes.’ You should
avoid vaccines strictly if you want the judge to
take your exemption claim seriously, so one could
respond by saying that you would take all other
available precautions and actions—clean the
wound thoroughly, apply disinfectant, make use of
other available 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.

b) “What are your religious beliefs that are
opposed to immunizations?” Answering this
question may be best done in conjunction with
applicable legal precedent in support of the
answer—have copies of those cases available to
hand to the judge as/if needed. E.g., case law
supports your right to personal religious beliefs,
whether or not you belong to an organized
religion, if you don’t belong to a church or belong
to one that does not have tenets opposed to
immunizations.

c) “What church do you belong to?” Same
as b) above—be prepared to support your answer
with applicable legal precedent, as
misunderstandings abound about whether or not
one has to belong to an organized religion
abound, and legal precedent supporting your
answer may prevent it from becoming an issue.

d) “Do you object to other medical
treatments on religious grounds?” This point is
understandably confusing for many people. There
is not necessarily a contradiction between refusing
vaccines and utilizing other medical treatments.
The distinction for some is that immunizations are
80
a treatment intended to address a hypothetical
future risk, and as such, they show a lack of faith
in God’s protection, His Immune System, His
choice about whether or not we will or should get
sick, etc.; 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.
113

8. Other Considerations in Vaccine Custody
Disputes

There are many factors that may affect the
final outcome in vaccine custody disputes.
Possible considerations include:

113 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.’”
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
vaccination status, but also with regard to the
state’s acceptance of the exemption claim);

b) What kind of exemption it is;

c) Whether or not the pro-vaccine parent was
agreeable to the exemption prior to the parents
separating. When parents agree on non-
immunization prior to separation, the pro-vaccine
parent’s change of position after custody becomes
disputed can certainly look disingenuous and lose
credibility accordingly. However, it may be
necessary to dispense with the health question
first, and a court may rule in favor of a child even if
that favors a disingenuous parent;

81
d) 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; and

e) 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, and other custody-related
matters.

9. The Final Fallback Position: Appeal

In the event that the pro-exemption parent
loses the vaccine dispute at trial, the parent may
wish to consider appealing the decision. States
generally provide means by which the carrying out
of an order may be “stayed” (delayed 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 an attorney as quickly as
possible if this situation applies to you.

82
X.  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 state
legislatures (not unlike the question of doing
some, but not all, vaccines), unless it is clear from
the language of the law that this is a legal option.

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, if
supporting a delayed vaccination schedule
amounts to their supporting an unlawful choice on
the part of the parents.
114 In any event, parents
who wish to consider this option should also
investigate the legality of the option.

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 many vaccines within a short
period of time may not be.

114 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 worth investigating.
83
XI. REFUSAL TO VACCINATE FORMS
115

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 in the unimmunized patient.”
116  Arguably,
neither of these rationales applies to patients
exercising a legal vaccine exemption. For this and
other reasons, the use of Refusal to Vaccinate

115 This section is adapted from an article published in the
Townsend Letter, April 2008 (www.townsendletter.com).
116 1 Available at:

http://www.cispimmunize.org/pro/pdf/RefusaltoVaccinate_revised%204-11-06.pdf

.
forms raises serious ethical questions and should
be reconsidered reconsidered.

First, some pediatricians reportedly require
all unvaccinated children’s parents to sign a
Refusal to Vaccinate form before they will treat the
parents’ children.
117 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 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

117 Many practices reportedly refuse to treat a child who is
not immunized under any circumstances. This raises a
separate, additional ethical concern.
84
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 treating an unvaccinated
child. Furthermore, if an unvaccinated child in
need of treatment is refused treatment and suffers
preventable harm as a result, who is to blame?

Some of the specific statements in Refusal
to Vaccinate forms raise ethical questions as well.
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,
118 but more
importantly, it conflicts with federal agencies and

118 And those of a growing number of health care
professionals as well.
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.
119 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
significant health risk is one properly put before
lawmakers, and not one for healthcare
professionals to impose coercively on their
patients or patients’ parents.

Exacerbating the above concerns further is
the AAP’s recommended practice of requiring

119 Or else those legislatures would not have enacted
exemption laws in the first place.
85
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 go-round. Rather, in this context, the policy is
clearly utilized solely to create repeat
opportunities to convince parents who refused
vaccines previously into changing their minds and
abandoning their legal right to refuse vaccines.
Must doctors really employ such coercive tactics
rather than simply inviting parents to discuss their
concerns? Moreover, this practice risks
undermining the doctor-patient relationship, 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 ties to government such as routinely
accepting Medicaid or Medicare.) State
constitutions and statutes often provide broad
support for the free exercise of religion as well.

Another concern goes more to the heart of
the AAP’s health-risk argument, that being the
numerous peer-reviewed medical studies,
86
government statistics, and other credible
information that collectively raise legitimate
questions about current immunization policy.
These concerns are echoed by a growing number
of doctors, medical researchers, and professional
organizations who are speaking out about
problems with mandatory immunizations.
120 So,
despite the AAP’s claim of unanimity among the
American Academy of Family Physicians, the
Centers for Disease Control, and itself on the
merits of vaccination, the position behind its
Refusal to Vaccinate form is ultimately 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

120 See, among countless other examples, “Dispelling
Vaccination Myths” at
http://www.vaccinerights.com/resources.html#articles, and
“Show Us the Science,” Mothering Magazine. March/April
2001.
admittedly 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
expose the 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
87
vaccinations!
121 This concern is raised by
implication in the AAP’s Refusal to Vaccinate form
unmodified as well. Parents signing that form may
be admitting 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

121 However, those who refuse vaccines while not
exercising a legal exemption may be violating the law and
subject to prosecution accordingly.
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 non-vaccinating 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
88
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 risk of harm—
exemption laws would not be on the books.

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. But even then, the
form content should be limited to the liability
concern only, and not used as a vehicle for
imposing what is really more of a 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.
122 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, as
evidenced by the mushrooming alternative and
complementary healthcare industry in recent

122 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.
89
years. Prudent physicians will consider this fact
and adjust their style of practice accordingly.

In summary, the use of Refusal to
Vaccinate forms raises 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 views in the least upon their
patients—and they should only express their
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, or to impose on,
anyone else. 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 corresponding state medical
ethical rules.

90

Courtroom, Pittsboro, NC
XII. 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 to 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 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 only if you need to at that
time, your assessment should 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 much less expensive
91
legal consultation up front. It is also true that many
people have lost exemption rights unnecessarily
due to lack of knowledge about their rights and
how best to exercise them—e.g., not knowing
what to say and what not to say, when and to
whom, as suggested by the cases cited above in
which people mistakenly mixed religious and non-
religious objections to vaccines in defense of a
religious exemption. 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, a follow-up attorney
letter may be needed; or, where conflict is present
or imminent, active representation and legal
intervention by an attorney may be necessary.

As indicated above, the law on vaccine
religious exemptions is technically unsettled in
many regards in most states. That is, most states
have little or no state precedent, and the 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 at least
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
92
to persuasively assert those rights to local
officials, should that become necessary.

Unfortunately, few if any of the factors in
your assessment can be quantified, including the
likelihood that a local official may be unwilling to
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 willing to “hear” an attorney,
especially when assertions about your rights are
supported with legal authority, which may include
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. 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 authority
93
and clout necessary to move a cause forward
smoothly where lay people alone cannot.

Following is a list of situations in which you
really should consult an attorney, even if you
would otherwise choose not to:

A.  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; or, the local
rules and customs. 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 the rules or the law, and
so are often not able to participate effectively and
efficiently in the legal process. Therefore, pro se
clients often come away from hearings feeling like
they haven’t been heard.
123

B. 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 and citations supporting your rights
under the specific facts in your situation, and
hopefully cut short a potentially costly, drawn-out
legal conflict and loss of your exemption right. He
or she 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 decision about how best to proceed

123 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
them.
94
under the circumstances.

C. 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.
124 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

124 Or, as a wise person once said, “Just because you’re
paranoid doesn’t mean they’re not out to get you!” ☺
scrutiny of local officials, or avoid scrutiny
altogether. When authorities look for vulnerable
exemption 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 renders their
exemption claim vulnerable.

D. 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 having received vaccines in
the past can complicate getting the exemption.
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
previously, authorities could view that behavior as
95
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 insurmount-
able, but it may be more complicated than
situations where past vaccines are distant in time
or where none have occurred. In this situation,
discussing the matter with an attorney is
advisable, to consider the arguments and
strategies that will best support your exemption
goal.

E. 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. An attorney is highly recommended in
this situation.

F. You want some vaccines, but not all. If
your states’ laws don’t specifically provide for this
option (and most probably 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 is at
least one possible argument for a qualified
vaccine religious exemption that would allow
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, that argument may be
feasible. As a practical matter, though, it has a
good chance of being rejected initially, requiring
you to argue it on appeal of an administrative or
trial court’s decision. So, be prepared for a
potentially long and costly battle if you wish to
assert this position and your state’s laws don’t
96
allow you to refuse some, but not all, vaccines.

G. Claims of Abuse and Neglect. If you are
exercising a valid legal exemption, then failure to
vaccinate alone can’t create a legal 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. Such a situation virtually
requires the assistance of a knowledgeable
attorney. 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.
125 So, this is a concern that should

125  In other words, it’s possible to lose one’s children, at
least temporarily, prior to there being actual proof of any
be taken 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.
126 Put simply, to minimize the chances
of non-vaccination causing a problem with local
officials, you should, at any given moment, either
be up to date with all required immunizations or
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

wrongdoing. 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.
126 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.
97
triggered by nothing more than a single phone call
from a “concerned citizen”—that may even be a
well-meaning friend, neighbor or relative—to local
authorities.

H. You wish to avoid immunizations required
by your employer. There may be 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
discussed above (see above section on Federal
Administrative Law). Consider consulting an
attorney as and if necessary, 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 help you refuse vaccines without
losing your job.

I. 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 life (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—or, all of the above. This is a quick
summary of some of the most important benefits
you should expect from a consultation with a
knowledgeable attorney, which the author
98
recommends for anyone serious about religious
exemptions to immunizations (as with any
important legal issue, for that matter). It is a very
small price to pay for the long-term benefit of
knowing what your rights really are and how best
to proceed with exercising and defending them,
and the best protection for you as you proceed
forward with your exemption, in a more fully
informed way.
J. 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.
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XIII. FREQUENTLY ASKED QUESTIONS

A. Can I use an attorney from another
state?
127

Yes, but…

This is an important practical question, as
there appears to be very few private practice
attorneys anywhere in the country knowledgeable
about vaccine exemptions. The answer is a bit
complicated, because vaccine religious exemption
law involves a mixture of state and federal law. An
attorney generally must have a license from the
state concerned to advise a client on that state’s
law, and exemptions for state residents involve
state statutes and regulations. However, an

127 In federal matters such as immigration and the military,
it may not matter in which particular state or territory the
attorney is licensed, as there is no federal law license. Any
attorney licensed in the U.S. may practice federal law.
attorney may be able to advise
clients on federal law regardless
of the state in which the attorney
is licensed.
128 Thus, the question of whether or not
an attorney may properly advise a client on a legal
matter that is a mixture of state and federal law,
such as with state exemption laws and federal
Constitutional rights defined by federal legal
precedent, when the client resides in one state
and the attorney’s license is from another, may
not be immediately clear. Attorneys and a law
professor the author has consulted about this
have given different opinions. What is clear is this:
1) An attorney with a law license from state A
can’t represent a client in court in state B without
first getting permission from state B’s state bar

128 These are generalizations which, like many other legal
generalizations, have exceptions.

Courthouse at
Chapel Hill, NC
100
(which may or may not be possible depending on
individual states’ rules and laws); and 2) It is likely
that state A’s state bar would take the position that
an attorney licensed in state B, who advises a
client in state A on a state law matter in state A, is
practicing law without a license in state A. So, any
attorney who does not have a license in your state
but who gives you advice about your rights under
your state’s vaccine exemption laws may be
risking disciplinary action that could include having
their law license suspended or revoked.

However, a knowledgeable out-of-state
attorney may be able to advise you on your
Constitutional rights and how they apply to the
facts in your specific situation, and may be able to
discuss state vaccine laws generally, if not give
you advice on your state vaccine laws specifically.
Frankly, most state vaccine laws are drafted in
unambiguous language and are pretty
straightforward to understand. The more
complicated part of the equation is usually the
relationship of federal precedent to specific
situations, and that is something an out-of-state
attorney may be able to advise you on without risk
of violating either state’s law practice licensing
requirements. If necessary, though, an out-of-
state attorney could be consulted in conjunction
with a local attorney, to provide both the
necessary in-state license and the critical vaccine
exemption expertise, when such expertise is only
available from an out-of-state attorney. Please feel
free to contact the author if you have further
questions about this (contact information below in
About the Author).

B. Can I claim a religious exemption if I have
both religious and non-religious beliefs opposed to
immunizations?

101
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.
129
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 non-

129 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. State
legislatures, having enacted exemption requirements,
have, arguably, already deemed such risks to be
sufficiently low as to make vaccine requirements
necessary and appropriate.
religious 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.

If need be, consult an attorney to get
clarification on the legal line between religious and
non-religious objections for legal purposes (it’s not
always as straightforward as one might 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.

102
C. Can the state take away my legal
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. Curiously,
exempt students have reportedly been required to
stay home for 21 days when another immunized
student contracts chicken pox; in one instance,
the parents were told that the days missed from
school would be unexcused absences.
130

D. Can I claim a religious exemption if I don’t
belong to an organized religion?

130 If true, there may be legal grounds to challenge this. It
hardly seems reasonable for a child to be punished for her
parents’ lawfully-exercised religious beliefs.
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 by local officials. However, it is possible
that local officials would allow such an exemption,
given the likely contrary outcome of a formal legal
dispute. But if they did, it would not be because
they had to legally, it would be because they
chose to bypass a losing court case for practical
reasons.

If you present an exemption claim supported
by federal persuasive precedent and it is denied,
you could take the matter to court, and run
through a series of appeals if necessary, until a
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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 (instead of
“corrected”), resulting in the loss of the religious
exemption right altogether, until the subsequent
passage of a new religious exemption law 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 (and assuming the state has the right
to question your religious beliefs, which is not the
case in all states). While there’s no way to
guarantee an outcome in any specific instance in
advance, generally, the application of persuasive
precedent is successful when applied to add
clarity to an existing statute that does not address
specifically the issue in question. For example, in
states with statutes that don’t address
membership in an organized religion explicitly on
way of the other, persuasive 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 other
requirements are met. However, in states that
explicitly require membership in an organized
104
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).

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 will likely be difficult in states
with laws that specifically require membership in a
religion with tenets in opposition to the
immunization requirements,
131 for the reasons

131 Catholics who object to immunizations may be relieved
to know that there are writings from the Vatican that
support a non-vaccination position. While not a legal
argument, they may help persuade other Catholics, e.g., at
Catholic schools, that the Catholic Church provides some
noted in the preceding paragraph. In states whose
laws don’t require church membership, your odds
of success are much greater, as the precedent,
even where persuasive and therefore 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

supports a non-vaccination position. See Children of God
for Life at www.cogforlife.org.
105
exemption claim vulnerable to a challenge of
insincerity 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 Prior Vaccines
Necessarily Prevent the Exercise of a Present
Religious Exemption?

It depends…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
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 related note, 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. For example, one may have been
coerced into vaccinating against one’s religious
beliefs previously, but be better able now to be
assertive about not wanting them. The more
106
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, in effect, act first and
investigate later. 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.

107
In any event, common sense dictates that
one either be up to date with all required
immunizations or be 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 perceived as, or
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 no other
health concerns, is to get the next scheduled
immunization. Take your child in for a check-up
anyway.

I. Can I lose custody of my children
because of my religious objections to
immunizations?
This is a possibility, but there are often
strong legal arguments favoring pro-exemption
parents. See the above section on Vaccine
Custody Disputes.

J. Can I adopt a child without getting her
vaccinated?

When adopting children from overseas, you
can use form I-601, Application for Waiver of
Grounds of Excludability, pay the corresponding
fee, and provide the required writing discussed in
the Federal Administrative Law and Immigration
sections above. 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
108
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 the services
of a knowledgeable attorney, in addition to the
adoption or immigration attorney, as these latter
attorneys are unlikely to be unfamiliar with
immunization waiver rights and procedures.

K. Can I legally refuse some vaccines but
not others?

Unless your state’s laws explicitly provide for
“picking and choosing” vaccines (and few if any
likely do so explicitly), or unless there is a federal
or state court opinion holding that doing so is a
proper interpretation of your state’s laws (and the
author is aware of any such precedent), then such
an option is most likely not a viable legal
alternative. Therefore, those who decide to pick
and choose 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
109
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. However, phrases such as “reasonably
accommodate” are inherently vague and subject
to interpretation, so there may be opposing
arguments with corresponding disagreement. An
attorney may be able to help locate applicable
legal precedent that can clarify how far employers
must go to accommodate their employee’s
religious beliefs. See the sections above on
Federal Administrative Law and Healthcare
Employees.

M. Are there exemptions for the military?
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 do not qualify for any of the
exemptions in your state, you legal options are to
work to get new legislation passed that expand
your state’s exemption options to include you, or
110
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, and
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 for you or
your child to be required to take the vaccines, so
why would they?

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 (which states
have no philosophical or religious exemptions),
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
111
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. The author is
not aware of any court cases addressing the
extent to which states may go to impose
vaccination as it might hypothetically apply to
physically forcing vaccination against the will of
the person being vaccinated. As with any other
legal matter, it may depend on the specific facts in
an actual situation, so the question can be
addressed here only in hypothetical terms.
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 under the U.S.
Constitution. 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
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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, as far as this author knows.

113
XIV. FUTURE RIGHTS

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,
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”
132 of vaccination beliefs

132 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.
widely held, despite scientific
evidence to the contrary,
such as the alleged but
disputed facts that vaccines
provide protection from disease and are the cause
of infectious disease declines over the last
century.
133 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

133 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.

114
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.

115

XV. 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.
134 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,

134 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.
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.

The starting place for legal research on your
legal exemption options and rights is your state’s
116
statutes and regulations for school exemptions,
federal regulations for immigration waivers and
military exemptions, and federal and state statutes
for employment concerns, as discussed above.
Some helpful resources include:

A. Websites: These can be good starting places,
though recent changes in the law may not be
reflected here:

(1) The World Association for Vaccine
Education lists each state’s laws, linked at

http://www.novaccine.com/law-exemptions/.

(2) The National Vaccine Information Center
(NVIC) lists vaccine exemption statutes and some
administrative code: www.nvic.org.

(3) The National Conference of State
Legislatures has a list of links to each states’
exemption statutes at
www.ncsl.org/programs/health/SchoolExempLawsChart.htm.

(4) Findlaw provides links to searchable
state and federal laws, including constitutions,
some case law, statutes, and administrative code
(unfortunately, not all states have searchable
statutes available to the general public), at
www.findlaw.com.

(5) Your state health department may have
its own website that provides exemption laws and
procedures.

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.
117
B. 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

http://lib.law.washington.edu/ref/lowcostcalr.html.

These services provide access to up to date state
and federal legal resource materials for a
subscription fee. Most attorneys and 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.
C. 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 Research a Legal Problem (revised March
2009), at:

http://www.aallnet.org/sis/lisp/research.htm.

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.

118
XVI. ABOUT THE AUTHOR

Alan G. Phillips 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 2002. He is a member in good
standing of the North Carolina State Bar, the
North Carolina Bar Association, and North
Carolina’s Judicial District 15B and Orange
County Bars. Prior to becoming an attorney, Alan
co-founded Citizens for Healthcare Freedom, a
North Carolina grassroots organization dedicated
to promoting awareness of the growing
international vaccine controversy, supporting the
right to informed choice in healthcare decisions
generally, and supporting access to effective
alternative healthcare modalities. Alan is also the
author of “Dispelling Vaccination Myths,” an
internationally published article that documents
concerns associated with mass
immunization practices and policies
in the United States and around the
world. Alan has been researching the medical,
political, and legal aspects of vaccine policy and
practice for over 15 years, and is available for
presentations and consultations on vaccine
exemption rights and issues. For detailed
background information on Alan, see
www.vaccinerights.com/vitae.html, or contact:

Alan Phillips, Attorney and Counselor at Law

E-mail: attorney@vaccinerights.com

P.O. Box 3473
Chapel Hill, NC 27515-3473
919-960-5172
www.vaccinerights.com
www.alanphillipslaw.com

Alan G. Phillips,
Attorney at Law
119
XVII.   FEEDBACK

Comments, corrections, questions, proposed additions/deletions, and any other concise, 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 and Counselor at Law
P.O. Box 3473
Chapel Hill, NC 27515-3473
E-mail: attorney@vaccinerights.com

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FOR NEWS AND OTHER VACCINE RIGHTS
INFORMATION AND UPDATES!

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