THE RELIGIOUS AND PHILOSOPHICAL EXEMPTIONS TO STATE-COMPELLED VACCINATION: CONSTITUTIONAL AND OTHER CHALLENGES Alicia Novak* INTRODUCTION Every fall, millions of school-age children engage in a scary, but necessary, ritual. They bring home vaccination forms that their teachers gave to them, with instructions that the papers can only be signed once their pediatricians have pricked the children with various needles and administered different inoculations. After a further glance at the forms, the parents learn that their children may not at- tend school without these vaccinations.! In several states, however, certain families can opt out of the vaccination requirement while their children remain registered for school.2 These families must qualify for a statutory, religious or philosophical exemption from vac- cination. Such exemptions are shrouded in controversy, leading three states to declare them improper.' The Supreme Court has not yet ad- dressed the constitutionality of the exemptions; however, there are now stronger reasons to assess and rethink the exemptions to state- compelled vaccinations. As the number of alternative and "spiritual" treatments increase, and as access to incorrect information about the dangers of standard vaccinations increases through additional ave- J.D. Candidate, 2005, University of Pennsylvania Law School; B.A., 2002, Johns Hopkins University. Many thanks to Professors Kristin Madison and Jennifer Rosato for their assistance; to Marc Melzer, Dionne Anthon, Lexer Quamie, Erica Flores, Akua Asare, and the entire edito- rial staff of the Journal of Constitutional Law for their input and hard work; and to my family, friends, and Arash for their support throughout this endeavor. All states now require proof of vaccination as a condition of school enrollment against numerous diseases, most often diphtheria, measles, rubella, and polio. SeeJames G. Hodge, Jr. & Lawrence 0. Gostin, School Vaccination Requirements: Historical,Social, and Legal Perspectives, 90 KY. LJ. 831 (2001-02) (providing an overview of the history of vaccination as it relates to school enrollment). 2 Forty-seven states allow for religious exemptions, while seventeen states allow for philoso- phical exemptions from compelled vaccination. See discussion infra Parts I.B (The Religious Exemption), Part I.C (The Philosophical Exemption). 3 The three states are Mississippi, West Virginia, and Arkansas. See Ross D. Silverman, No More Kidding Around: RestructuringNon-Medical ChildhoodImmunization Exemptions to Ensure Public Health Protection, 12 ANNALS HEALTH L. 277, 283 (2003) ("Three states (Arkansas, Mississippi, and West Virginia) offer no religious exemption from school immunization requirements."). JOURNAL OF CONSTITUTIONAL LAW [Vol. 7:4 nues of information, such as the Internet,4 the number of people who seek an inoculation exemption for their children for non-medical reasons will continue to increase.5 Additionally, when large epidem- ics pass, vaccination rates generally decline, increasing the danger of .7 * outbreaks. While outbreaks among communities that deny such vac- cinations to their children are infrequent, such outbreaks have been devastating and remain a threat." This Comment provides a broad overview of the constitutional, public health, and implementation challenges of the religious and philosophical exemptions to state-compelled vaccination. I ulti- mately conclude that the exemptions are problematic for numerous reasons, among them constitutional concerns, and should be either eliminated or significantly revised. This Comment focuses on the re- ligious exemption, as it is the more widespread and controversial of 4 See, e.g., Concerned Parents for Vaccine Safety, Whats [sic] in a Shot? (listing antifreeze, disinfectant, and aluminum as regular components of vaccines and suggesting that vaccines can cause Alzheimer's Disease and seizures, when no direct link has yet been found between vacci- nations and these results), at http://web.archive.org/web/20040213184301/home.sprynet .com/-gyrene/whatsi-l.htm (last visited Mar. 19, 2005); Vaccination Liberation, Vaccination LiberationInformation (stating incorrectly that "[v]accines often prove INEFFECTIVE in prevent- ing disease"), at http://www.vaclib.org/basic/investigate.htm (last visited Mar. 19, 2005); Vac- cine Information (providing articles and editorials about the alleged dangers of vaccination), at http://www.vaccinetruth.org/ (last visited Mar. 19, 2005). But see Nicola Jones, Link Between Vaccine and Autism "EntirelyFlawed": MedicalJournal Says It Regrets Publishing Wakefield's Research on MMR, NATURE, Feb. 23, 2004 (reporting that a popular study suggesting a link between the measles, mumps, rubella ("MMR") vaccine and autism was flawed and that the journal that pub- lished the study regretted having made that assertion), available at http://www.nature.com/ nsu/040223/040223-1.html. 5 In Colorado, the state with the lowest vaccination coverage, exemption rates have jumped tenfold over the past eleven years. In Oregon, the number of exemptions has doubled since 1999, largely due to an increase in religious exemptions. In Washington, exemptions have in- creased from 3.4% of kindergarten-aged children five years ago to 4.1%, or an increase of 2400 children. See Steve Mitchell, ParentsOpting Out of Vaccines for Kids, UNITED PRESS INT'L, Nov. 13, 2003 ("The rates of parents that are taking non-medical exemptions to school immunization laws are increasing in many states and are probably increasing nationally."), available at http:// www.upi.com/view.cfrn?StorylD=20031 1 13-041813-2746r. 6 See Hodge & Gostin, supranote 1, at 848-49 ("The effectiveness of the vaccine itself led to a progressive, albeit apathetic, argument: since the vaccine has worked, why should individuals continue to be subjected to the harms of vaccination unless there exists an actual threat of dis- ease in the community?"). 7 See Mitchell, supra note 5 ("This [increase in non-medical exemptions to school immuni- zation laws] poses a greater risk of disease outbreaks and even poses risks to vaccinated chil- dren."); see also State, Church Clash Over Faith Healing Beliefs, BELOIT DAILY NEWS, Apr. 21, 1997 [hereinafter Faith Healing Beliefs] (discussing members of the Faith Tabernacle who were tried for involuntary manslaughter for allowing their children's illnesses to progress without any medical care), available at http://www.beloitdallynews.com/articles/1997/04/21/export 84624.txt. 8 See Faith HealingBeliefs, supra note 7 (describing the Faith Tabernacle, a controversial reli- gious sect in suburban Pennsylvania that was given exemption from childhood vaccination, and the 1991 deaths of five children from a measles outbreak). Apr. 2005] STATE-COMPELLED VACCINATION the two. Additionally, the religious exemption raises more concerns, making reconsideration necessary. In Part I of this Comment, I examine the history of both state- compelled vaccination and the religious and philosophical statutory exemptions adopted by several states. In Part II, I present several constitutional arguments for limiting exemptions and argue that reli- gious exemption statutes might violate the Establishment Clause of the First Amendment9 because several types of religious exemption statutes violate one or more of the three prongs established by the Supreme Court in Lemon v. Kurtzman ° as the test to determine the constitutionality of laws challenged under the Establishment Clause." I also argue that the religious exemption statutes violate the Equal Protection Clause because they discriminate against people who have unrecognized or non-established religious beliefs against vaccination, and because the statutes also violate the equal protection rights of those individuals who have received vaccinations yet remain vulner- able to the diseases. In Part III, I discuss additional, non- constitutional arguments for limiting both the religious and philoso- phical exemptions. I first discuss the importance of preserving the rights of unvaccinated children, who cannot decide for themselves if they wish to avoid the illnesses that the vaccinations are intended to protect against. I suggest that the exemptions may be improper be- cause they force children to become martyrs, and because they violate a child's right to an "open future," as defined by Joel Feinberg.1 Ad- ditionally, I argue that the state's compelling interest in preserving public health and safety justifies compulsory vaccination, without the option of exemption, as a prerequisite for school enrollment. I ad- dress in greater detail the cluster problem caused by groups of ex- emptors living in the same community and how this might under- 4 mine herd immunity. " I also discuss the need to reconsider the current religious exemption system because of the difficulty associ- 9 U.S. CONST. amend. I (stating that "Congress shall make no law respecting an establish- ment of religion"); see infra Part II.A.1 (First Amendment Concerns: The Establishment Clause). 10403 U.S. 602 (1971). 11 See infra Part II.A.1 (First Amendment Concerns: The Establishment Clause) (listing the prongs of the Lemon test and explaining how the current religious exemption statutes each vio- late different prongs of the test). 12 See infra Part III.A. 1 (Martyrdom and a Court's Consideration of a.Child's Individual Views and Rights). 13 See infra Part III.A.2 (A Child's Right to an "Open Future"); see also Joel Feinberg, The Child's Right to an Open Future, in WHOSE CHILD? CHILDREN'S RIGHTS,