For reasons that are evident to everyone, there has been renewed focus on whether and when vaccinations can be required. For the most part, the case law on vaccines is older law; the important vaccination cases in the United States court system are typically from the early part of the 20th century. However, a case did surface out of New York during 2020 and the plaintiffs are trying mightily to get it into the Supreme Court of the United States. The case involved routine childhood vaccinations, but it is a good preview of how COVID vaccine challenges may fare in the courts.
Before getting to the case, there are only five states (California, Maine, Mississippi, New York, and West Virginia) that do not allow for either a religious or philosophical exemption from routine childhood vaccines. Ohio allows both exemptions. New York repealed its religious exemption after a measles outbreak in 2018 and 2019. Religious or philosophical exemption also look different from state to state. For instance, in Virginia, parents can receive a personal exemption only for the HPV vaccine, and Missouri’s personal belief exemption does not apply to students in public schools, but only to children in childcare facilities. States also differ in the breadth of their medical exemption. After the measles outbreak, New York narrowed its medical exemption.
The case, out of the Northern District of New York and the 2nd Federal Circuit, is Doe v. Zucker. The case involves many parents of children in the public-school system in New York who have some medical issue or reaction to vaccines. However, the New York health department will not grant medical exemptions for these students. After the pandemic closed school buildings and education became remote learning, these parents were seeking to have their children included in remote learning despite their refusal to receive required vaccinations to attend school in person. The parents argued that school immunization requirements and the districts’ refusal to allow the children to learn remotely violated their 14th Amendment due process right to direct the upbringing of their children.
On Oct. 22, 2020, the district court Judge Brenda K. Sannes ruled that the states may establish mandatory school vaccination requirements and give local officials enforcement authority. The families then filed for an emergency injunction to allow their children to learn remotely and the same judge also denied that motion on Nov. 20, 2020. The parents then filed a request for an emergency injunction pending appeal with the 2nd Circuit, which denied the request “because the Appellants have not met the requisite standard” on Jan. 5, 2021.
The parents next step was to file with Justice Sotomayor in the Supreme Court of the United States requesting an emergency injunction to allow their unvaccinated children to participate in remote learning. The request was denied on Jan. 29, 2021. The parents were persistent and again filed their request for injunctive relief, this time with Justice Gorsuch. The matter is scheduled go to conference on March 5, 2021.
As always, the OSBA division of legal services continues to monitor these cases and will post information as it becomes available. If you have questions, please contact the division at 1-855-OSBA-LAW.