1. Overview Of Court Challenges of Vaccine Exemptions
Alan R. Hinman, MD, MPH
39th NIC
March 23, 2005

3. Outline of presentation
Current status of exemptions
Impact of exemptions
Court challenges
Conclusion

4. Task Force for Community Preventive Services
“Vaccination requirements for childcare, school and college attendance are recommended on the basis of sufficient scientific evidence that:
These requirements are effective in reducing vaccine-preventable disease and/or improving vaccination coverage
They are effective in all relevant populations”
Source: AJPM 2000;18(1S):92-96

5. Vaccination Coverage Among Children Entering School 2003-2004 School Year
Polio %
DTP %
Measles 95.4%
Mumps 96.0%
Rubella 95.9%
Hepatitis B 95.7%
Varicella 93.3%
Source: MMWR 2004:53:

6. Vaccine requirements 2003-2004 school year
Diphtheria 50
Tetanus 50
Polio 50
Measles 50
Rubella 50
Mumps 47
Pertussis 44
Hepatitis B 44
2d measles 49
Varicella 42
Hepatitis A 7
Hib (DC) 50
Hib (HS) 48

8. Exemptions to immunization requirements 2003-2004 school year
Medical 50 states
Religious states*
Philosophical states**
*MS, WV - neither NIP nor NCSL include AR
**NCSL says 20, NIP says 18

9. Frequency of exemptions 1997-1998 school year
<1% of entering students had any kind of exemption
7 states had >1% (MI highest with 2.3%)

10. Frequency of exemptions 2003-2004 school year
Type #rep High State #>1.0%
Med % IN 4
Rel % WY 4
Phil % WA 10
Any Temp % UT 11

11. Frequency of exemptions
Inverse correlation between complexity of exemption process and proportion of exemptions
0/19 states with highest complexity had >1% of students exempted
5/15 states with simplest procedure had >1% of students exempted
Source: Rota, AJPH 2001;91:

12. Policies associated with increased exemptions
Lack of written instructions for completing the school immunization requirement
Administrative procedures making it easier to claim an exemption
Granting philosophical exemptions
In MA & MO, which do not authorize philosophical exemptions, 17.0% & 18.1% of schools reported permitting them
Source: Salmon et al, AJPH 2005;95:

13. Documentation required for medical exemption, 2003-2004
Certificate 17
Form 14
Letter 29
Affidavit 5
Immunization record 5

14. Documentation required for religious exemption, 2003-2004
Statement 16
Letter 19
Form 19
Affidavit 9
Other

15. Documentation required for philosophical exemption, 2003-2004
Statement 5
Letter 10
Form 11
Affidavit 5
Other

16. Impact of exemptions - 1
Persons with RPE had 35 X higher risk of measles than vaccinated persons
Persons living in communities with increased numbers of RPE at increased risk of measles
Source: Salmon, JAMA 1999;282:47-53

17. Impact of exemptions - 2
Children with personal exemptions were 22.2 X more likely to have measles than vaccinated children
Children with personal exemptions were 5.9 X more likely to have pertussis
Frequency of exemptors associated with incidence of both measles and pertussis in vaccinated children
Source: Feiken, JAMA 2000;

18. Impact of exemptions - 3
13 outbreaks of measles in religious groups opposing immunization
>1,200 cases and 9 deaths
Outbreaks of polio (1970s), pertussis, and rubella among Amish groups
Source: CDC, personal communication

19. Is there a constitutional right to a religious exemption?
Courts in AR, MS, WV have said no
Malone & Hinman conclude:
“…there is no First Amendment free exercise right to an exemption from mandatory vaccination requirements.”
Source: Malone & Hinman in Goodman et al,
Law in Public Health Practice, 2003:

20. 2005 review of challenges Query of AIM
In the past five years, have there been court challenges based on exemptions (or challenges to the exemptions themselves)?
If so, what was the nature of the challenge and what was the outcome?
Westlaw search (Kevin Malone)

21. Results AIM query - 21 states responded
AK, AR, CA, CO, GA, ID, LA, MA, MN, MT, NC, NE, NJ, NYC, OK, OR, SC, TX, WA, WV, WY
16 had no court challenges although several reported some discussion/debate about exemptions
Westlaw search – 9 cases from 3 states (AR, WY -2, NY - 6)

22. Court challenges - 1
AR reported challenges to its religious exemption clause in 2002
Religious exemption ruled unconstitutional (Philosophical exemption added by legislature in 2003)
NJ reported some challenges with parents claiming religious exemptions
Courts have ruled that requests were philosophical rather than religious

23. Court challenges - 2 NY – 6 cases
NY strongly pursues need to demonstrate sincere and genuine religious belief
In 3 cases court sided with state that sincere and genuine religious belief had not been demonstrated
In 3 cases court ruled against state and held that sincere and genuine religious belief had been demonstrated

24. Court challenges - 3 WY - 2 cases
Religious – “the Department of Health exceeded its legislative authority when it conducted a further inquiry into the sincerity of Mrs. LePage’s religious beliefs.”
Medical – “the Department of Health exceeded its statutory authority…in not accepting the waiver request submitted…The statute does not require any reason be given for a medical contraindication.”

25. Trends in exemptions – Wyoming 1990-2004

26. Religious/Philosophical/Personal Non-medical exemptions
Studies to date indicate that, in absence of philosophical/personal exemption, many jurisdictions grant religious exemptions to those who really object on philosophical or personal grounds
Wide range of approaches to granting religious exemptions (e.g., NYC and WY)
There may be wide variation in criteria applied to granting exemptions and frequency with which they are granted

27. “…it should not be easier to obtain an exemption than it is to have a child immunized.”
Source: Santoli & Hinman, AJPH 2002;52:8

28. Conclusion - 1
School immunization requirements result in lower disease incidence and higher immunization coverage
School immunization requirements are constitutional
There is no constitutional right to either religious or philosophical exemption
Courts have upheld immunization requirements but may differ on how they are applied/enforced by HD

29. Conclusion - 2
There appears to be an increase in the number of exemptions in recent years
States should develop policies and procedures for granting exemptions and assure that school personnel and local health departments are fully informed about these policies and procedures
It should not be easier to obtain an exemption than it is to have a child immunized