ANTI-VAX AND THE FIRST AMENDMENT

I had the pleasure of visiting with my friend Scott Sloan last week to talk about a pending case in Kentucky where a high school student sued the Northern Kentucky Health Department.  The student’s family contends the Department violated his First Amendment right to freely exercise his religion.   The family’s religious views apparently compel them to refuse the chicken pox vaccination.

On the surface, one can see the argument – the government ought not compel anyone to violate their sincerely held religious beliefs.  For example, if a government office tried to enforce a rule against “facial displays” it’s unlikely that would allow it to discipline a Catholic employee wearing ashes on Ash Wednesday.

But there is a big “but” here.  A vaccination requirement isn’t a purely private matter.  For a vaccination to work most effectively, it’s critical that as much of the community receive the treatment.  So unlike the employee wearing ashes, the person refusing the vaccination potentially puts the broader community at risk.  And that implicates the state’s police power, which can trump a religious objection.

Here’s a great summary of the law on this point.  Courts have not been too receptive to the student’s argument.  This quote – from a 1944 decision — best sums it up:

“[T]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”

My prediction powers are not that great, but I think it’s safe to say, the student here is facing long odds.