1. The Impact of Nonmedical Exemptions to Compulsory Immunization Laws, Arkansas: A Case in Point Rick D. Hogan, JD, M.P.H. General Counsel, Arkansas Department of Health 43 rd National Immunization Conference March 30, 2009

3. Immunization Laws in the United States The United States Supreme Court hands down the landmark case of : Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) The United States Supreme Court hands down the landmark case of : Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905)

4. Jacobson Federalism State’s power derives from the Tenth Amendment: Federal government limited to powers expressly granted in the Constitution.  Police Power authorizes states to compel vaccination for the public good  State power is constitutionally acceptable if exercised reasonably

5. Floor of Constitutional Protection Public Health Necessity  Demonstrable health threat Reasonable Means  Reasonable intervention to achieve objective Proportionality  Quarantine v. Isolation Harm Avoidance  Medical Contraind ication Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905)

6. Arkansas Cases [Pre-religious Exemption] The Arkansas Supreme Court rules that children must be properly immunized before entering schools despite the religious objections of a parent. Cude v. State, 237 Ark. 927 (1964) Cude v. State, 237 Ark. 927 (1964) The Arkansas Supreme Court rules that children must be properly immunized before entering schools despite the religious objections of a parent. Cude v. State, 237 Ark. 927 (1964) Cude v. State, 237 Ark. 927 (1964)

7. Arkansas Cases[Pre-religious Exemption] The Arkansas Supreme Court rejects “clear and present danger” argument. There was hardly a clear and present danger for contracting smallpox in Arkansas in 1965. Wright v. DeWitt School District, 238 Ark. 906 (1965) The Arkansas Supreme Court rejects “clear and present danger” argument. There was hardly a clear and present danger for contracting smallpox in Arkansas in 1965. Wright v. DeWitt School District, 238 Ark. 906 (1965)

8. Arkansas statute in 1967 No child can be admitted to Public or Private school unless “age appropriately immunized from Poliomyelitis, diphtheria, tetanus, pertussis…and other diseases as designated by the State Board of Health… Ark. Code Ann. § 6-18-702(a)

9. Arkansas Exemption 1967 The provisions of this section shall not apply if the parents or legal guardian of that child object thereto on the grounds that immunization conflicts with the religious tenets and practices of a recognized church or religious denomination of which the parent or guardian is an adherent or member. Ark. Acts 244 of 1967 The provisions of this section shall not apply if the parents or legal guardian of that child object thereto on the grounds that immunization conflicts with the religious tenets and practices of a recognized church or religious denomination of which the parent or guardian is an adherent or member. Ark. Acts 244 of 1967

10. Philosophical Exemptions/Individual Rights A New York Supreme Court determines that New York’s religious exemption could not be limited to members of recognized religious groups. Maier v. Besser, 341 N.Y.S.2d 411 (Sup. Ct. Onondaga Co. 1972) A New York Supreme Court determines that New York’s religious exemption could not be limited to members of recognized religious groups. Maier v. Besser, 341 N.Y.S.2d 411 (Sup. Ct. Onondaga Co. 1972)

11. Philosophical Exemptions/Individual Rights A parent challenges New York’s religious exemption. The judge relies on earlier state decisions, including Maier, to expand New York’s religious exemption to include personal beliefs. Sherr v. Northport U. Free, 672 F. Supp. 81 (E.D.N.Y. 1987) A parent challenges New York’s religious exemption. The judge relies on earlier state decisions, including Maier, to expand New York’s religious exemption to include personal beliefs. Sherr v. Northport U. Free, 672 F. Supp. 81 (E.D.N.Y. 1987)

12. First Challenge After Adoption of Religious Exemption A parent challenges Arkansas’ religious exemption. In an unpublished opinion, the federal court rules that the statute was constitutional. George Forbes, Christian Student, No. LR-C-87-97 (E.D. Ark., 1987)

13. Challenge to Religious Exemption 1.Cynthia Boone - Hep B 2.Daniel McCarthy - All 3.Shannon Law - Varicella 4.Susan Brock - Hep B. 1.Cynthia Boone - Hep B 2.Daniel McCarthy - All 3.Shannon Law - Varicella 4.Susan Brock - Hep B.

14. Department of Health Requirements Prior to Challenge 1.Recognized Religion 2.Tenets and practices must conflict with immunizations “Personal or philosophical opposition without specific doctrinal conflict was not a valid basis for an exemption.”

15. Boone v. Boozman Court rules the religious exemption, as applied, unconstitutional, but finds compulsory immunizations to be constitutional. Boone v. Boozman, Et al., 217 F.Supp.2d 938 (E.D. Ark. 2002 Boone v. Boozman, Et al., 217 F.Supp.2d 938 (E.D. Ark. 2002)

16. Impact of Ruling Federal Courts hold Religious Exemption Unconstitutional:  Violated Establishment Clause  Violated Free Exercise Clause  Violated Equal Protection Clause Arkansas becomes one of three states with medical exemption [only] to immunizations

17. Moving from Religious to Philosophical Exemption 4 States require “organized, recognized or established” religion just as Arkansas formerly required. 14 States require “genuinely and sincerely held” religious beliefs. 28 States and DC merely require an affidavit or form stating opposition to vaccination based on religious grounds.

18. Religious Exception: Nondenominational? Boone, 217 F. Supp. 2d 947 and McCarthy, 212 F. Supp. 948 held: “ Arkansas’ religious exemption discriminates against nondenominational, nonsectarian individuals with sincerely held religious beliefs, and churches and denominations that do not have explicit teachings on immunizations, but leave such matters to individual religious conscience.”

19. Philosophical Beliefs akin to Religious Beliefs Courts hold states cannot have an exemption based on church doctrine without exempting those who have individual religious beliefs not based on doctrine.Courts hold states cannot have an exemption based on church doctrine without exempting those who have individual religious beliefs not based on doctrine.

20. Arkansas (PE) Now The “religious” exemption now states that “the provisions of this section shall not apply if the parents or legal guardian of that child object thereto on the grounds that immunization conflicts with the religious or philosophical beliefs of the parent or guardian.” Ark. Act 999 of 2003, Ark. Code Ann. §6-18-702 (4)(A).

21. Philosophical Exemptions In states offering both religious and philosophical exemptions, the philosophical will always exceed the combined medical and religious exemptions.  Ross D. Silverman, No More Kidding Around: Restructuring Non-Medical Childhood Immunization Exemptions to Ensure Public Health Protection, 12 ANNALS HEALTH L. 277 @ 284.

25. Results 1.Unreliable number of Medical contraindications 2.Concentrated area [pockets] of unimmunized school age children 3.Longitudinal tracking unavailable for children across years to determine changes in exemption numbers and types 1.Same ind applying for diff types ex? 2.How many New ind req ex?

26. CIVIL LIABILITY DUTY- Do parents have a duty to avoid causing harm to others? Breach- Failure to vaccinate one’s child? CAUSATION- Direct or proximate cause Special populations [immune compromised] Infants too young to receive total regimen of vaccinations, or if they did not take? Intervening cause? Damages?

27. Thank You