Wednesday, August 03, 2011 by: Alan Phillips, J.D.
A request for hearing will bring these immunization proposals before the Colorado Board of Health this fall. Colorado citizens should bring their concerns to the attention of their State Board of Health. All are welcome to use my letter below in full or in part as desired. In the meantime, everyone else should familiarize themselves with these concerns to be prepared to respond quickly when the matter arises in their state, or to argue repeal of statutes and regulations already in place with any of these same concerns.
August 3, 2011
Joni Reynolds, RNC, MSN, Director
Colorado Immunization Program
Colorado Board of Health
RE: CIP Meeting/Agenda Notes May 18, 2011
Draft Religious and Personal Exemption Forms
Dear Director Reynolds:
I’m writing with concerns about the draft religious and personal exemption forms proposed in the May 18, 2011 CIP Meeting/Agenda Notes and posted on the Internet at http://www.cdphe.state.co.us/dc/immunization/BOHMinutesdraftExemptionForm5-18-2011.pdf.
My concerns are itemized below. Please review and respond at your earliest convenience. In the meantime, thank you for your kind consideration.
Alan G. Phillips, Esq.
P.O. Box 3473
Chapel Hill, NC 27515-3473
Draft Religious Exemption Form
The draft religious exemption form raises three primary concerns:
1. First, it includes a line for the signature of a “Religious Leader.” This implies a requirement that religious exemption applicants must be members of an organized religion. However, federal courts have held that requiring membership in an organized religion for the exercise of a vaccine religious exemption violates the U.S. Constitution. For example, Sherr and Levy vs. Northport East-Northport Union Free School DistrictMason v. General Brown Cent. School Dist., 851 F.2d 47, 51 (2nd Cir. 1988) (quoting United States v. Seeger, 380 U.S. 163, 166, 85 S.Ct. 850, 854) held that “it is sufficient if the belief ‘occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.'” In Lewis v. Sobol, 710 F. Supp. 506, 511 (S.D.N.Y. 1989) (quoting Mason v. General Brown Central School Dist., 851 F.2d 47, 54 (2d Cir. 1988)), the court said that the state must provide “a general exemption for any person who opposes immunization of their child based on a sincerely held religious belief.” The court in Lewis further stated that the fact that the plaintiffs “are not members of an organized religion does not preclude them from protection under the Free Exercise clause if their beliefs are in fact religious,” id. at 512, and awarded parents money damages for the violation to their First Amendment free exercise of religion. Id. at 517. More recently, the court in Farina v. The Board of Education, 116 F. Supp.2d 503, 507 (S.D.N.Y. 2000) (citing Sherr, 672 F.Supp. at 91) stated, with regard to the exercise of a vaccine religious exemption: “The beliefs need not be consistent with the dogma of any organized religion, whether or not the plaintiffs belong to any recognized religious organization.” Finally, the court in McCarthy v. Boozman, 212 F.Supp.2d 945 (W.D.Ark. 2002) said that 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. The only contrary federal court ruling in recent decades came from a Kentucky federal court held in 1976, which held that requiring applicants to be members of an organized religion did not violate the First Amendment, but Kentucky has since revised its religious exemption statute to remove the requirement of membership in an organized religion, in apparent recognition of the overwhelming majority view.
State courts have come to the same conclusion. Vaccine religious exemption laws requiring membership in an organized religion were struck down as unconstitutional in Massachusetts in 1971 (Dalli v. Board of Education, 358 Mass. 753, 267 N.E.2d 219 (1971)) and Maryland in 1982 (Davis v. State, 294 Md. 370, 451 A.2d 107 (1982)).
Given the substantial body of legal precedent cited above, DOH should remove the line for the signature of a Religious Leader, to avoid violating Colorado citizens’ Constitutional rights.
2. The second concern is that the religious exemption form includes a list of “Recommended” vaccines. Since the exemption would only apply to required vaccines, the inclusion of recommended vaccines is misleading and irrelevant, and likely to cause confusion for those applying and those processing the exemption. In addition, it is inappropriate for DOH to use a legal exemption form as an opportunity to promote non-mandatory pharmaceutical products, or to give the appearance of this regardless of DOH’s intent.
3. The third concern with the religious exemption form pertains to the list of “Required” vaccines. First, this list is misleading, as it implies a right to refuse some (but not all) vaccines for religious reasons. However, Colorado’s religious exemption statute (Colo. Rev. Stat. SS 25-4-903) does not provide a “pick and choose” option for the exercise of a religious exemption. Therefore, itemizing required vaccines gives the appearance of DOH inviting good-faith applicants with sincere religious objections to vaccinations to engage in selective vaccine refusal that may result in their loss of the entire right–that DOH is trying to trick good-faith applicants into failing to secure the exemption. For example, good-faith applicants might reasonably object to only those vaccines produced with the use of aborted fetal tissue when seeing itemized vaccines on the list, but then have their exemption rejected when they attempt to do, since the statute does not appear to allow this option. So, absent an explicit statutory right (or case law creating one) and corresponding policy providing the right to refuse some but not all vaccines for religious reasons, this list should be excluded in the final form, as it invites argument, controversyand litigation.