THE LAW ON VACCINE RELIGIOUS EXEMPTIONS— WHAT YOU NEED TO KNOW

[Guest guest]

THE LAW ON VACCINE RELIGIOUS EXEMPTIONS—

WHAT YOU NEED TO KNOW

_http://www.whale.to/vaccines/phillips.html_

(http://www.whale.to/vaccines/phillips.html)

By_ Alan G. Phillips_ (http://www.whale.to/v/phillips.html) , Attorney at

Law

 

December 2006

There’s a lot of information on the Internet about vaccine religious

exemptions. Unfortunately, much of it is misleading or incorrect. The law on

religious exemptions is inherently complex. The truth is, for most U.S.

citizens, the law on vaccine religious exemptions is not clearly defined.

Furthermore, laws continually change and evolve, so staying on top of your

rights

requires ongoing vigilance.

A complete explanation of vaccine religious exemption law is well beyond

the scope of a single article (which is why I’m writing a book on the subject

—be on the look-out for this in the near future!), but an introduction to

some of the complicating factors may not be.

First, in the U.S., vaccine requirements and exemptions (also known as

exceptions or waivers) are addressed at the state law level, as the federal

government lacks authority to enact such laws for state residents (federal

laws do address vaccine requirements and exemptions for immigrants and the

military; they also provide a means of avoiding vaccines in the workplace for

religious reasons). Vaccines are legally required in all U.S. states and

territories, but exemptions are also available in each state and territory

that at least some residents may exercise.

One’s right to refuse immunizations in the exercise of one’s religious

beliefs is a right afforded by both state and federal law in all but two

states (Mississippi and West Virginia), primarily by way of state code and the

U.S. Constitution’s First and Fourteenth Amendments. So, right off the bat,

vaccine religious exemptions necessarily involve a potentially complex

mixture of state and federal law. Furthermore, on the state level, there are

both statutes and regulations that must be reviewed to begin the assessment

of one’s rights and options, and state constitutions may play a role as

well.

Rights are seldom if ever absolute. One person’s right to exercise their

religion is limited by opposing rights—in the case of vaccine religious

exemptions, the state’s right to require immunizations for the (presumed)

benefit of society. Furthermore, determining your rights is not simply a matter

of reading a state statute or a Constitutional section or Amendment. While

those may be necessary starting places, they contain only broad

generalizations that tell you little if anything about how that law applies to

the

specific set of facts and circumstances in your life. Make no mistake—the

application of those laws can vary, sometimes radically, with the widely

varying circumstances of various individuals and families.

How do we determine, then, how the law applies to your unique situation?

We must look to legal precedent, or “case law.†Legislatures may enact

statutes, but it is the courts that interpret them—on a case-by-case basis,

one

individual dispute at a time. The U.S. Constitution is interpreted in the

same way—by the courts, one legal dispute at a time. When a case in a lower

court is appealed to a higher court, the higher court (or federal district

courts and some state trial courts) may issue a written “opinion†of

their ruling in the case that then serves as guiding legal precedent for the

lower courts in their jurisdiction in similar future disputes. So, for

starters, then, to determine what the law is for your specific situation, you

must first determine whether or not there is any legal precedent that applies.

Needless to say, the totality of court opinions constituting the body of

precedent in any given area of law at any given time can never precisely

address the hypothetically infinite variety of possible future situations and

circumstances that may arise in that same area of law. So, when a new

situation arises that doesn’t clearly match any existing legal precedent, it

may

be difficult to say with any certainty what the law is for that specific

situation—that is, where no legal precedent applies to a present situation,

the law may be unsettled or undetermined for that particular situation.

When precedent bears some resemblance to a current situation but is

distinguishable from it, there may be opposing arguments about how or if the

existing

precedent applies to the present situation, with corresponding uncertainty

as to what the law is or should be for that present situation.

Unfortunately, the complexity doesn’t end there. Even if there is legal

precedent that clearly applies to your specific situation, you still have to

look to whether or not that precedent is “binding†or merely

“persuasive.â€

This depends on whether or not the precedent was issued by a court within

your jurisdiction. If not, it is “persuasive precedent†only, and the

courts in your jurisdiction are not required to follow it. Persuasive

precedent may support a legal argument for what your rights should be—e.g.,

how a

court may or should rule if the matter ends up in court—but it won’t

determine in any absolute sense what your rights presently are. The bottom line

is, a court can rule contrary to persuasive precedent—against you—if it

believes that doing so is the more just outcome in your particular case. And

as you might well imagine, arguments favoring immunization often have the

legal advantage.

Most of the federal precedent pertaining to vaccine religious exemptions

comes from cases that arose in federal courts in New York State. Those

precedent-setting cases were in federal district courts and the Second Circuit

Court of Appeals (which jurisdiction encompasses the states of New York,

Vermont and Connecticut). If you live outside of New York (with regard to

those court opinions from New York District Courts), or outside of NY, VT and

CT (with regard to the opinion from the Second Circuit Court of Appeals),

this precedent is not binding on the courts in your jurisdiction and serves

only as a legal argument in support of a desired outcome—it does not

determine what the law in your jurisdiction is now. Sometimes, that legal

argument

is enough to get the exemption without having to take the case to court

(though as a practical matter, the argument may need to be made by an

attorney); other times, it isn’t.

One frequent issue concerns states with laws that require one to be a

member of an organized religion with tenets in opposition to immunizations in

order to qualify for a religious exemption. Such laws have been ruled

unconstitutional in some state and federal courts in recent years. But that

doesn’

t mean that similar laws in other states that have not been challenged in

court are unconstitutional—it only means that if the laws in those other

states were challenged in court, there is a “persuasive†legal argument

that

the court should rule similarly (but no guarantee that it will). So, if

you live in a state that has these requirements, you are legally bound by

them unless and until the laws are changed, despite the legal argument that if

challenged, those laws may be ruled unconstitutional. This doesn’t mean

there’s no possibility of exercising a religious exemption in those states if

you don’t belong to the right kind of church, but it may mean that if you

attempt it and are successful, it would probably be because local officials

chose not to spend the time and money defending a case they felt they were

likely to lose, and not because there was any uncertainty about the

enforceability of the law as it currently stands. Moreover, it is not certain

that

if such laws were challenged in court that they would be ruled

unconstitutional, as there is some opposing legal precedent. In Kentucky, it is

constitutional to require membership is an organized religion, based on a

federal

district court ruling; in Mississippi, vaccine religious exemptions were

ruled to be unconstitutional altogether by that state’s supreme court. It

may be possible for the laws in those states to be changed, but unless and

until they are, the law in those states is enforceable as it now stands.

Another common complication to exercising a vaccine religious exemption

concerns practical reality. Even if you are clear about your rights under

state and federal law and know the strengths and weaknesses of your position,

you still have to deal with local authorities that may or may not know your

legal rights, and who may or may not cooperate with you even if they do.

Sometimes, exercising an exemption is very straightforward and proceeds

without incident, with or without an attorney. Other times, local officials

resist residents’ efforts to exercise a valid legal exemption. Reports of

rude, uncooperative, and even coercive or confrontational officials are not

uncommon. Most of the time, these folks are probably genuinely concerned about

your health and safety, and that of your children and community, but

sometimes, local officials overstep their boundaries in their desire to

“protectâ€

those concerned (and perhaps their desire to be free from accountability

for your failure to vaccinate). However, even those people who successfully

exercise a religious exemption on their own may inadvertently leave

themselves open to challenge, because of what they “don’t know that they

don’t

know†about the law on exemptions and the manner in which they exercise

their exemption in the absence of a complete understanding of their rights and

responsibilities. For these reasons, and because of the many inherent legal

complexities associated with vaccine religious exemptions generally, many

people wisely choose to consult a knowledgeable attorney before declaring

and exercising a vaccine religious exemption. For most, it’s a small

investment compared to the resulting peace of mind.

Alan G. Phillips, Attorney at Law

Alan G. Phillips, Esq., is one of the few attorneys in the U.S. with a

focus on vaccine legal exemptions. He can be contacted at: _lawpapa_

(lawpapa) , 919-960-5172, P.O. Box 3473, Chapel Hill, NC

27515-3473.