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The Law On Vaccine Religious Exemptions: What You Need To Know

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By Alan G. Phillips, Attorney at Law
P.O. Box 3473
Chapel Hill, NC 27515-3473
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. In addition, law continually changes and evolves, so staying on top of your rights requires ongoing vigilance.

A complete explanation of vaccine religious exemption law is beyond the scope of an 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 address vaccine requirements and exemptions for state residents (federal laws do address vaccine requirements and exemptions for immigrants and the military; they also provides a means of avoiding vaccines in the workplace). 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 determine fully 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 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 different individuals and families.

How do we determine, then, how the law applies to specific situations? We must look to legal precedent, or case law. Legislatures may make the laws, but it is the courts that interpret it -- on a case-by-case basis, one individual 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" that serves as guiding precedent for the lower courts in future similar disputes. So, for starters, then, to determine what the law is for your specific situation, you must 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 all of the different hypothetical future circumstances that may arise in that same area of law -- especially where there is limited precedent in the first place, as is the case with vaccine religious exemptions. When a situation comes up that doesn't clearly match any existing precedent, it may be difficult to say with any certainty what the law is for that specific situation. When precedent bears some resemblance to a current situation but is distinguishable from it, there may be opposing arguments about how the existing precedent applies to the present situation, with corresponding uncertainty as to the ultimate outcome.

Unfortunately, the complexity doesn't end there. Even if there is precedent that clearly applies to your specific situation, you still have to look to whether or not that precedent is "binding" or "persuasive." This depends on whether or not the precedent was issued by a court within your jurisdiction. If not, it is "persuasive precedent," and your local courts don't have to follow it. It may still 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 what your rights are, and the bottom line is, a court could rule contrary to that precedent -- against you -- if it felt that doing so was the more just outcome in your particular case (and as you might well imagine, arguments favoring immunization often have the 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. Sometimes, that argument is enough to get the exemption without having to take the case to court (though as a matter of practical reality, the argument may need to be made by an attorney); other times, it isn't.

One frequent question concerns those 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. But that doesn't mean that similar laws in other states that have not been challenged in court are presently unconstitutional -- it only means that if such present laws in those other states were challenged in court, they may be ruled unconstitutional at that time. 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 likelihood that if challenged, those laws would 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 if you did succeed, it would probably be because local officials chose not to spend the time and money defending a case they were likely to lose, and not because there was any uncertainty about the enforceability of the law as it currently stands.

Another common complication to exercising a vaccine religious exemption is the "practical reality" aspect. 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. Other times, local officials resist efforts to exercise a valid legal exemption. They have sometimes reportedly been rude, uncooperative, and even coercive or confrontational in their efforts to thwart efforts to exercise a valid, legal vaccine exemption.

Most of the time, these folks are genuinely concerned about the health and safety of you, your children and your community, but sometimes they overstep their boundaries in their zealousness to "protect" those concerned. But even those people who successfully exercise a religious exemption on their own inadvertently leave themselves susceptible to challenge, because of what they "don't know that they don't know" about the law on exemptions. 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.

*About the author: 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, 919-960-5172, P.O. Box 3473, Chapel Hill, N.C. 27515-3473. This article was on - Dec. 13, 2006.

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