Child Vaccinations: Free Religious Exercise & Criminal Charges

For over a decade, all 50 states have required parents to vaccinate their children against diseases such as measles, rubella, and polio prior to their admission into public schools. Despite this requirement there are exemptions which permit these unvaccinated students to enter public schools thereby exposing other children to diseases which were thought to be eradicated. The medical exemption is based on a diagnosis which has found that the child is allergic to the vaccine, or has a compromised immune system. In these situations the vaccine could potentially harm the child. The other exemption is based on religious beliefs. Forty-eight states maintain religious exemptions with the only exceptions being West Virginia and Mississippi, neither of which believe that religious beliefs are sufficient to exclude a child from the requirement. There is also exemption based on the parent’s own philosophical beliefs but only 14 states, including Pennsylvania, recognize this non-religious philosophical opposition.

The theory behind mass vaccinations is known as “herd immunity” and is based on the belief that a high percentage of immunized individuals will create a “protective barrier” which will keep the disease from spreading to those too young to be vaccinated or those who have an already compromised immune systems due to old age or other diseases such as AIDS. “Herd immunity” protection usually requires more than 90% of the population to be immunized to work. The population who cannot receive vaccinations because of medical reasons combined with those who refuse vaccines because of religious or philosophical reasons jeopardizes “herd immunity”. In addition to the obvious threats to the health and well-being of children the failure to vaccinate creates and estimated 10 billion dollars worth of healthcare costs and over 30,000 avoidable deaths in America each year.

While many believe that the constitution allows for total religious freedom and beliefs which create exemptions, the United States Supreme Court has ruled that religious exemptions to compulsory school vaccinations are not a requirement under the constitution. The Supreme Court in Prince v. Massachusetts stated that:

“The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the later to ill health or death. Parents may be free to become martyrs themselves, but it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make the choice for themselves.”

This Supreme Court decision allows Mississippi and West Virginia to maintain its no religious exemption law. (See the Free Exercise clause of the First Amendment.) In the remaining 48 states religious exemptions are interpreted broadly and courts have found that state governments can’t, in most cases, deem a religious belief inappropriate no matter how out of mainstream thinking it resides. Despite religious exemptions states may still take measures to the limit the number of unvaccinated children in schools. New York City, for instance, has created a law which fines public schools for admitting unvaccinated children. The fine is $2,000.00 a day for every unvaccinated child within the school. This measure has substantially reduced the number of unvaccinated children because school administrators do their best to discourage parents from the religious exemption due to the cost that it will impose on the school. While the school cannot refuse the child’s admission studies show that this type of fine drastically reduces the amount of unvaccinated children within the school. In addition, studies also show that a complex exemption process reduces the amount of unvaccinated children when compared to those states with very simple processes such as simply “checking a box”. An alternative to these measures is imposing a tax on individuals who choose not to vaccinate their children based on a percentage of their income. While some may believe that the federal government may not tax based on religious belief it is important to keep in mind that religious freedom is not absolute according to the Constitution and the right to practice ones religion does not allow one to harm the rights of others (public health, safety, and welfare). This type of tax would create a fund that could be used to deal with outbreaks most likely due to lack of vaccinations.

Pennsylvania allows exemptions for medical, philosophical and religious reasons (see title 28 § 23.84- exemption from immunization). To obtain a medical exemption a physician must provide a written statement that the immunization may be detrimental to the health of the child. The religious and philosophical exemption, however, are much broader and any parent, guardian, or emancipated child may invoke the exemption if they simply object to it in writing on the grounds that it violates “a strong moral or ethical conviction similar to a religious belief”. A school cannot turn away a child who is unvaccinated but has obtained the necessary exemption. The highest percentage of unvaccinated children normally exists in private religious schools where the school itself is founded or based on religious principles that object to vaccinations. In Lancaster County, for instance, 23.7% of grammar school students in private schools lack immunizations whereas Lancaster County’s public schools exemption rate is only 3%. Lancaster County maintains a strong Amish population which prohibits vaccinations for religious reasons.

Pennsylvania’s and New Jersey’s vaccination rates are well above the national average (91.9%). New Jersey’s vaccination rate is 95.6% which is the third highest in the United States and Pennsylvania’s is still 93.3% despite certain counties within the Commonwealth that object to immunizations for religious reasons. The City of Philadelphia’s vaccination rate is 95.9%.

While some parents may object to vaccinations based on reports that these vaccines contribute to other health conditions such as autism a countless number of medical doctors and the American academy of pediatrics have issued opinions completely dismissing these reports as medically baseless and false.

Criminal Prosecution

It is unlikely that you will find many if any prosecutions based on a parent’s refusal to vaccinate his or her child. As stated earlier, most states find a religious exemption broadly and many, including Pennsylvania permit philosophical exemptions. Despite the lack of prosecutions, however, the criminal justice system does permit the law to prosecute a parent for a child’s death in the event that it can establish gross negligence or recklessness. In Pennsylvania, for example, homicides are classified into one of three categories.: murder, voluntary manslaughter, or involuntary manslaughter. While murder and manslaughter are intentional killings, involuntary manslaughter, the lowest form of criminal homicide, is defined as “an unlawful killing had done with either recklessness or gross negligence”. While involuntary manslaughter is normally a misdemeanor charge it becomes a felony of the second degree where the victim is under the age of 12 and in the care of an adult.

A parent in this situation would more than likely not have the necessary state of mind (mess rea) for a court (judge or jury) to find him or her guilty of murder or voluntary manslaughter. If, however, the prosecution could establish that the religious or philosophical belief is not held by the parent but falsely put forth as justification for the death then there could be enough evidence to achieve a conviction, for involuntary manslaughter.

While generally the law will not question a parent’s belief it will and should investigate it if it compromises a child’s well-being. Prosecuting a parent after a child’s death unfortunately will not bring the child back. An alternative theory of prosecution, however, could prevent a child’s untimely death. Every state maintains a compulsory education statute which requires that children attend school a mandatory minimum number of days each year prior to a certain age. In Pennsylvania for instance all children must complete a certain number of educational hours (990 secondary school; 900 elementary school and 450 kindergarten).

While a parent can obviously send a child to a private school or home school him/her to complete this requirement the law can prosecute if these alternative forms of education do not meet the compulsory education statutes. There is no constitutional right to a straight forward school exemption procedure. All states including Pennsylvania are free to make the exemption process it as expensive and as complex as possible. The United States Supreme Court has already ruled that religious exemptions is not an absolute right (See Prince v. Massachusetts) States are free to implement measures against religious freedom provided that these measures do not inhibit or promote one faith over another.

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