The measles outbreak originating in Disneyland in California—which was finally declared over last month after 169 cases in the United States—thrust the issue of non-medical vaccination exemptions into the political spotlight again, and fueled the growing public controversy over their place in mandatory immunization policies. Personal exemptions for moral or philosophical reasons exist in some states, but religious exemptions, which are allowed in forty-eight states, are far more prevalent. Determined to cut down on the number of unvaccinated people, lawmakers across the U.S. have proposed restrictions and bans on religious exemptions, triggering heated (and ongoing) debates in California, Maine, and Vermont. The current backlash raises a series of important legal, political, and religious questions about these exemptions, beginning with the most basic one.
Why do these religious exemptions exist?
Christian Scientists played an important role in establishing religious exemptions as they relate to the medical care of children. In 1967, Christian Scientist Dorothy Sheridan was convicted of manslaughter under the child neglect law for not seeking medical attention for her daughter, who died of pneumonia (Sheridan had to tried to treat her daughter solely with prayer). In response, Christian Scientists began to mobilize against the various laws regarding child abuse and neglect by lobbying for religious exemptions. Their campaign met with great success; Sheridan’s home state of Massachusetts, for example, added a religious exemption to its child neglect law in 1971. In 1974, religious exemption clauses were added to the Code of Federal Regulations (since repealed), as well as to the Child Abuse Prevention and Treatment Act.1
The legislative and political climate of the late 1960s and early 1970s, coupled with scientific advancements2, contributed to the creation of a series of diagnostic, medical care, and preventative measures for children, including immunization—the product and legacy of the Great Society era. Along with these measures, however, came religious exemptions, in many cases the product of the same lobbying efforts from Christian Scientists. New York was one of the first states to institute a religious exemption to its vaccine mandate (for polio) in 1967, but when Iowa, one of the last states to mandate immunization for schoolchildren, passed its legislation in 1977, it too included a religious exemption. However, according to the Iowa’s director of the immunization program at the time, “he knew of only two religions — the Christian Science Church and the Netherlands Reformed Church — that might qualify.”
What is the religious basis for not vaccinating?
Like Iowa’s director of immunization, John Grabenstein of Merck (a major pharmaceutical manufacturer) reached the same conclusions when he studied different religions’ doctrines on vaccinations. Christian Scientists often rejected vaccines because of their belief in faith healing: “Disease, in this construct, is not fundamentally real, but rather something that can be dispelled, to reveal the perfection of God’s creation.” As for the Netherlands (or Dutch) Reformed, Grabenstein cites Frits Woonink of the Dutch Centre for Infectious Disease Control, who states that some Traditional Reformed believe that “protection through vaccination would make a person less dependent on the Living God. If God sends an illness, he has a reason for doing so.”3
But Traditional Reformed adherents do not necessarily follow a strict anti-vaccination policy. Woonink writes that acceptance of vaccines among the Traditional Dutch Reformed is increasing in the Netherlands, especially as community leaders argue in its favor. Meanwhile, Christian Scientist communities were responsible for a few notable disease outbreaks in the 1980s and 1990s, but Grabenstein notes that many have since been willing to accept immunization.
How many people claim (and support) these religious exemptions?
Not very many. Some commentators have noted an increase in religious exemptions in the last few years in certain regions, with others pointing out that these exemptions are likely being abused. Still, a 2009 study from the New England Journal of Medicine shows that exemption rates in states with only religious exemptions did not budge between 1991 and 2004; states with personal exemptions, however, did see their rates increase from 0.99% to 2.54%. The latest data from the CDC indicates that vaccination rates are still generally high. Clusters of unvaccinated people still do exist—one Amish community had a significant measles outbreak last year—but they are in the clear minority.
However, support (though not actual claimants) for exemptions is higher, particularly among those with children. In a recent NPR poll, 38 percent of households with children supported both personal and religious exemptions, compared to 28 percent of households without.
Will bans on these religious exemptions be passed?
A ban on religious and personal exemptions looks likely to happen in California, after the bill passed in the Senate just last week. But it’s difficult to imagine bans taking effect in more than a few states, especially as media coverage of the issue subsides. Yes, Jacobson v. Massachusetts (1905), Zucht v. King (1922), and Prince v. Massachusetts (1944) established precedents that personal and religious liberties cannot supersede the health of the children or the community. But disease, medicine, and society have changed drastically since then, and religious exemptions have been increasingly the norm in the last 50 years, both among legislators and the public.
The recent history of exemptions begins with Sherbert v. Verner (1963), which established a high standard that laws need to pass before they can burden the free exercise of a person’s religion. But then Employment Division v. Smith (1990) declared that laws are not required to accommodate these objectors. In response, Congress (with substantial public support) passed the 1993 Religious Freedom Restoration Act (RFRA), which reinstated the Sherbert standard for (federal) laws, which was then followed by multiple states passing their own RFRAs. In this climate, legislators will likely face challenges if they attempt to institute a ban; even in the midst of the latest outbreak, legislators in Colorado and New York have proposed expanding vaccine exemptions.4
What about raising the standard for those requesting religious exemptions?
This is certainly more likely to happen than a blanket ban, though several attempts—like this proposal in Arizona—have failed to even get a hearing. Even if they pass, however, these laws come with their own issues, if other states are any indication. Several states with religious exemptions do already have restrictions in place, most of which require some combination of a demonstrated genuine or sincere belief, membership in a recognized church, and a notarized note from a religious official. But that places them in potentially murky judicial/legal waters; namely that they do not pass the test set by Lemon v. Kurtzman (1971) for legislation on religion.5
Take New York, which has religious exemptions with such strict requirements. Parents have tested these requirements across multiple school districts over the last few decades, with some success. In McCartney v. Austin (1968), the court ruled that since Roman Catholicism doesn’t forbid vaccines, mandatory immunization law “does not interfere with the plaintiffs’ freedom of worship.” In the similar Berg v. Glen Cove City School (1994), however, the court accepted the parents’ own (anti-vaccine) interpretation of Judaism as religious and sincere, and granted an exemption despite lacking Jewish doctrinal support.
Meanwhile, Sherr v. Northport-East Northport Union Free School District (1987) held that the restriction on anti-vaccination parents being “bona fide members of a recognized religious organization” violates the Establishment and Free Exercise clauses. In Turner v. Liverpool Central School (2002), the court upheld the religious exemption of someone belonging to the Congregation of Universal Wisdom, essentially a mail-order religion that requires nothing beyond a “customary donation.”
But New York still has the power to verify the legitimacy of religious exemptions; in other states, that’s no longer the case after that part of the law was challenged in court. In 1999, the Wyoming Department of Health denied a religious exemption request after they determined it was not actually based on religious beliefs. But the Wyoming Supreme Court later overturned that decision in In re: LePage (2001), saying that the Department (and government in general) lacked the authority to investigate how “sincerely held” those beliefs were. As a result, anyone who fills out this form will be granted a religious exemption.
So while additional legislation placing more restrictions on religious exemptions may pass, it remains to be seen if they can withstand judicial scrutiny.
It is worth noting here that John Ehrichman, H. R. Haldeman, and Egil Krogh, close advisors to then-President Richard Nixon, were all lifelong Christian Scientists.↩
The measles vaccine was licensed in 1963, the mumps vaccine in 1967, and the rubella vaccine in 1969, before they were combined in the now-used MMR vaccine in 1971.↩
The test is as follows: (1) The statute must not result in an “excessive government entanglement” with religious affairs. (2) The statute must not advance nor inhibit religious practice. (3) The statute must have a secular legislative purpose.↩