A new law in New York State that eliminates exemptions from vaccinations has left some parents in a quandary. As the start of a new school year inches closer, parents who oppose vaccinations for their children due to religious beliefs, fear of side effects or other reasons, are questioning both the legality of the new law and whether there are any alternatives to mandatory vaccinations.

A recent measles outbreak in New York State that affected more than 1,000 individuals—mostly unimmunized children—and was the largest outbreak of measles in the state since 1991, prompted the passage of legislation (S.2994A/A.2371) that removes non-medical exemptions from school vaccination requirements for children.

New York State had previously allowed both medical and religious exemptions to the measles vaccine and other vaccines for students attending school, but now only allows exemptions for medical reasons. All 50 states and the District of Columbia allow medical exemptions, 45 states and D.C. allow religious exemptions, and 15 states allow “philosophical,” or personal belief, exemptions, according to the website ProCon.org. More than 26,000 children in New York had been unvaccinated due to religious exemptions from vaccines during the 2017–18 school year, according to the New York State Department of Health.

The mandatory vaccination bill was signed into law on June 13, 2019 and took effect immediately. Unvaccinated students have up to 30 days after school begins to show proof that they received the first dose of each required immunization. Some vaccines require a series of inoculations.

Many who are opposed to vaccinations based on their religious beliefs see the mandatory vaccinations as a violation of their right to freedom of religion. Others, who are opposed to mandatory vaccinations for other reasons, such as the fear side effects, see the new law as an intrusion of their parental rights.

Freedom of religion
Courts have found that the state has the authority to require mandatory vaccinations, established in 1905 in Jacobson v. Massachusetts, where the court ruled that citizens in the state of Massachusetts were required to be vaccinated against smallpox, according to the Freedom Forum Institute. The reasoning is to protect the health of children as well as the general public. Enforcement of mandatory vaccinations is generally accomplished by making vaccinations a requirement for school enrollment.

No Supreme Court ruling, however, explicitly establishes a position on religious exemptions to state-compelled vaccination, according to the Freedom Forum Institute. “However, it is clear from the Court’s establishment-clause rulings that it is unlikely for all such exemptions to be found in violation of the First Amendment. What is less clear is whether or not the Court would find the free-exercise clause to mandate the inclusion of religious exemptions. For this reason, the status of religious exemptions to state-compelled vaccinations is still very much unclear,” according to the Freedom Forum Institute.

Parental rights
The debate over the parents’ rights to make decisions on matters such as health care for children continues. “Parents who object to vaccinations, for either religious or philosophical reasons, have strong lobbies in many states. They receive support from legislators who see decisions regarding health care, like decisions regarding schooling, as an aspect of parental rights,” said Stanford Law Professor Michael S. Wald. “However, in most states, exemptions from vaccination laws can be overridden if the failure to vaccinate creates a substantial risk of serious harm to public health.  For example, in the event of an outbreak of a communicable disease a state may order that a child be vaccinated.”

No matter what the reason for opposing mandatory vaccinations, parents who wish to keep their children unvaccinated unfortunately have few options. They can:

• home school their children to skirt state education laws, although many parents don’t have the time, resources or ability to comply with state educational requirements;
• set aside their religious beliefs, which may be interpreted as a violation of their right to freedom of religion rights; or
• relocate to another state that allows religious exemptions for vaccines, which may not be a realistic option for many.

Parents seeking more information about interpreting and complying with New York State’s new mandatory vaccination law—or understanding the potential consequences of not complying with it—should contact an attorney.

Gerald D. Raymond, Esq. is the Managing Partner in Tully Rinckey PLLC’s Syracuse office and a member of the criminal, civil litigation and real estate practice groups.