After nearly four years fighting about whether and when employers may exclude contraceptive coverage from employee health plans (and even block others from providing that coverage), it’s perhaps refreshing to see less controversial cases. And few healthcare-exemption cases are less controversial than those brought by parents who object to vaccinating their children. Although the challenged laws are objectively more intrusive than the contraceptive regulations—vaccination laws require parents to get the offending treatment injected into their children—courts thus far have correctly dismissed these challenges with little fanfare.
This dynamic surfaced again in a recent federal trial-court decision in California, in which the court dismissed a federal and state constitutional challenge to California legislation repealing the “personal belief exemption” to requirements that those entering schools and child-care facilities get vaccinated against diseases—including diphtheria, measles, mumps, rubella, and other dreadful ailments. The court acknowledged that eliminating the personal-belief exemption “raises principled and spirited religious and conscientious objections by genuinely caring parents and concerned citizens,” but stated that “the wisdom of the Legislature’s decision is not for this Court to decide.” Because the legislature decided to scrap the personal-belief exemption, California now exempts only those children (1) with actual medical reasons for avoiding the vaccination, (2) who are home schooled, or (3) who qualify for an Individualized Education Program under federal disabilty law. That’s a much more limited and manageable group of exemptees.
Although quite a relief for those seeking to minimize gratuitous suffering from preventable diseases, the court’s decision implicates several knotty legal issues and is worth exploring further.
Free exercise and rational basis
The California vaccine case didn’t involve the same free-exercise doctrine as the contraception cases. The chaos wrought by Hobby Lobby—though spreading, for now—came from the federal Religious Freedom Restoration Act, which in some cases requires religious exemptions from neutral laws that happen to burden some people’s or entities’ religious exercise. But RFRA applies only to federal laws and thus doesn’t reach state vaccination requirements. And while some states have their own versions of RFRA, California does not.
Unlike RFRA, the First Amendment’s Free Exercise Clause applies to all levels of government, yet it—also unlike RFRA—does not require exemptions from laws that are neutral and generally applicable. In short, if the law is minimally rational and doesn’t single out religion or particular religions, then the Free Exercise Clause doesn’t require any exemptions—even if that law would burden some people’s religious exercise.
The anti-vaccine plaintiffs, however, attempted to subject the vaccination requirement to RFRA-like strict scrutiny by invoking the mysterious “hybrid-rights doctrine.” (Briefly: In 1990 the Supreme Court suggested, without elaboration, that the more exemption-friendly standard would apply to laws that simultaneously burdened religious exercise and implicated another constitutional right.) Here, the plaintiffs argued that the vaccine law infringed both their free-exercise rights and parental rights. But the trial court rejected this argument, pointing to language from the Ninth Circuit observing that “the hybrid rights doctrine has been widely criticized, and, notably, no court has ever allowed a plaintiff to bootstrap a free exercise claim in this manner.” Because the hybrid-rights doctrine defies most legal convention—two otherwise failing claims join forces, Voltron-style, to form a viable claim?—the court applied the standard Free Exercise Clause rule.
And under that standard rule, the vaccination requirement survives as long as it’s supported by a rational basis. Rational-basis review is typically deferential to the government, and California’s vaccine requirements are ultra-rational—given the need to protect individual children and the herd at large from dangerous, preventable diseases and the skyrocketing number of California parents who claimed the personal-belief exemption. (It’s always a bad sign when the measles visit Disneyland.) As the court explained, quoting the Supreme Court, “the right to practice religion does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” Indeed.
But what about your exceptions?
The plaintiffs also relied on a tactic commonly employed by those seeking religious exemptions from generally applicable laws: They argued that because the challenged law has other exceptions, then they too were entitled to a religious exception. In particular, the plaintiffs pointed out that the California law still exempts those with medical concerns, home schoolees, and certain students with disabilities, and maintained that the Free Exercise Clause accordingly requires the vaccination law to exempt conscientious objectors as well. The trial court rejected this argument cursorily, stating only that “a majority of the Circuit Courts of Appeal have refused to interpret [Supreme Court precedent] as standing for the proposition that a secular exemption automatically creates a claim for a religious exemption.”
Although the court reached the right result, its conclusion needed more reasoning, along the following lines: Virtually all laws have some exceptions, and often those exemptions don’t undermine the law’s purpose. For instance, a self-defense exception doesn’t undermine the goal of a murder ban; we’re concerned about gratuitous killing, but a putative victim need not stand by while someone tries to kill him. As another example, laws banning race discrimination by employers exempt entities with fewer than fifteen employees; Congress determined that employment discrimination was less harmful (at least writ large) when practiced by companies that employ fewer people. Likewise, if you tried to poison a stranger with radiation, you’d be charged with assault or attempted murder; but you wouldn’t be violating the law if you were a doctor administering a necessary X-ray. These exemptions notwithstanding, few would argue that the Free Exercise Clause requires religious exemptions from laws banning murder, race discrimination, or poisoning.
The same analysis applies to the vaccine requirement, whose exemptions all have unique rationales. The health exemption is self-explanatory: We don’t want children to get sick or die in the service of preventing illness or death. The home-schooling exemption is regrettable yet understandable: Kids that don’t attend communal schools or daycare centers are less likely to transmit diseases to others. And as the court explained in a different section of its opinion, the narrow disability exemption arises because students who require an Individualized Education Program have unique educational needs and because federal disability laws protect their right to a specific type of education.
Of course, at some point a law might have so many exemptions, and its exemptions might be so dubious, that a court should infer that the law arose from animus towards a particular religious group. But without that kind of gerrymandering, the mere presence of exemptions suggests only that the legislature didn’t wield a bludgeon—not that they were targeting religious objectors.
Enter (and exit) strict scrutiny
Although not required by the Free Exercise Clause, the court did end up applying strict scrutiny to the vaccination law, because the plaintiffs also argued that the vaccine law violated California’s state constitutional right to an education, and under the California Constitution restrictions on that right do receive strict scrutiny—that is, the government must show that the challenged law advances a compelling interest and is necessary to advance that interest.
The court had little trouble concluding that the vaccination requirement survived strict scrutiny. Although removing the personal-belief exemption was “an aggressive step,” the court acknowledged, “so, too, is the goal of providing a means for the eventual achievement of total immunization.” “An aggressive goal requires aggressive measure,” added the court, “and the State of California has opted for both here.” The court was right. For no matter what deranged vaccine deniers might say, vaccines are essential healthcare, and increasing rates of measles, whooping cough, and mumps have highlighted the cost of extravagant exemption schemes.
Because vaccines are so important, even more conservative judges (the judge in this case was appointed by George W. Bush) will likely continue to embrace laws revoking religious and belief exemptions to vaccine requirements. And they will likely do so even when they must subject the vaccination requirement to strict scrutiny.
For now, at least. It so happens that religious objections to most vaccines are relatively obscure, and most vaccines benefit both sexes and don’t implicate sex or STIs. (The HPV vaccine isn’t covered by the California requirement and attracts harsher opposition.) As a result, most judges likely don’t imagine themselves or their friends and colleagues objecting to these vaccines, and virtually all judges were vaccinated, have their children vaccinated, and want other people’s children to be vaccinated.
But what if (1) leaders of one or more popular religion opposed certain vaccines, (2) the vaccines at issue prevented deadly STIs, rather than ailments spread asexually, and (3) those infections affected some demographics more widely than others? Would those essential public-health measures also survive unscathed, or would the entities battering the contraceptive-coverage requirements join the fray? Time will tell…
Greg Lipper (@theglipper) is a partner at Clinton Brook & Peed and the former Senior Litigation Counsel at Americans United for Separation of Church and State.