The State Can Inoculate – A Legal Discussion of State-Enforced Vaccinations Over Parental Objections, Part 1

Welcome to Wednesday on Lawyers & Liquor! I’m your host the Boozy Barrister, and today we’re gonna start stirring some shit up nice and creamy, a veritable shit stew, regarding the ability of a parent to withhold vaccinations from their children! That’s right, in the far off year of 2018, we’re seriously going to talk about the ability of the state to tell a parent they have absolutely no right to refuse to do something that common sense, common decency, and love for your fucking child should dictate you do goddamn anyhow without the state having to step in and call you a genuine fuckwit.

Goddammit, do I hate people some time.

Anyhow, at the end of this whole thing we’re going to be going over the rights of parents to refuse to inoculate their child for some dipshitty reason or another versus the power of the state to come in and smack the shit out of the self-same parents, forcing them to fucking give their kids a little pokey-pokey for the welfare of the human race as a whole. But before we even start to talk about that, we need to talk about something else, because it all fucking plays into the question of whether or not the government can force a kid to a receive a vaccination over the objections of the parents. We need to, first and foremost, talk about the religious liberty rights of a parent in relation to seeking medical treatment for their kids, and more specifically the rights of the parents who claim to hold religious beliefs that prevent them from seeking medical treatment for their kids.

So, without further ado, let’s look at Part 1 of “The State Can Inoculate” – The Religious Belief and Medical Care!

Prologue: Why Don’t People Want Their Kids To Get Vaccines?

Alright, let’s just start with the background of what this really is all about. Back in 1998 Andrew Jeremy Wakefield, a gastroenterologist from the land that brought us such great ideas as a dish called “spotted dick” and a globe-spanning empire that crushed native cultures under its boots, published a paper in a publication called The Lancet. This paper alleged that he had found a link between the administration of the Measles, Mumps, and Rubella vaccine and autism. Of course, what he had found was, like, a correlation and not a causation, and while the paper stated as much Wakefield went out to a press conference and stirred up panic about the possibility that the vaccine could be causing autism, then essentially went on the World Tour 2000 Edition to spread that whole idiocy to the United State. He continued to do this for, like, six years until, in 2004, and 2006, determined that Doc had used flawed research and a test group that, likewise, was present for bias because they were subjects of a proposed lawsuit seeking to link the vaccine to autism directly. Which, you know, isn’t part of that whole “scientific method” thing.

Unfortunately, by that time the notion that “VACCINES WILL MAKE YOUR CHILDREN AUTISTIC” had already taken a pretty firm hold thanks to the magic set of moron tubes we know as the Internet. So that’s when, faster than you could say “You Got Mail!,” the whole thing really took off. Now we have a whole bunch of parents out there stating that their children shouldn’t be vaccinated and it’s become a whole thing, with diseases that vaccines had almost eliminated (like Measles, the very first “M” in MMR) beginning to stage comeback tours across the country. Except instead of that playing “Freebird” one last time, it’s threatening to kill your kids and cause the whole concept of “herd immunity” (the idea that a large group of vaccinated people prevents the spread of the disease to a relatively small number of people who cannot receive vaccination) to be at risk.

In addition to multiple kids being at risk due to the limited number of parents willing to vaccinate their children in fear it will lead to autism, it is unfair towards the scientists to discredit their findings through clinical trials. These researchers, equipped with the best apparatus like incubators, pipettes, and this laboratory stirrer, were in the position to find a vaccine that would defend against MMR whilst ensuring the children were not subjected to any lethal or dangerous side effects. Wakefield was not.

ENTER THE STATE!

Turn out that this shit isn’t exactly a novel concept. As long as there have been vaccinations, there have been people that have been opposed to them. At first, it was opposition due to religious and moral grounds, essentially stating that they believed intentionally infecting someone with a virus was attempted murder and tampered with god’s plan or some such shit. And there have also been groups that have been morally opposed to the whole idea as well, thinking it’s some sort of moral affront to risk a child or adult by injecting them with dead strains of viruses and…well, okay, back when the vaccination method was “insert a fucking sore scraping under the skin to give them a milder form of the virus,” that may have been a valid complaint. But we’ve come a pretty fucking far way from that, and the general consensus has become “Vaccines are a necessity for the good of society as a whole.”

You know what we do when we determine something is for the good of society as a whole?

We make a fucking law about it! And that’s just what states began to do in regards to vaccination, making laws that required children who are about to start attending school to have vaccinations. And, of course, they coupled this together with laws that require the fucking kids to get an education, in effect making it so every kid out there needs to have a vaccination. Pretty fucking clever, huh? I sure thought so, and so did the legislators who did that shit…right up until someone started raising religious objections to that shit.

ENTER THE PARENTS AND THEIR RELIGIOUS BATSHITTERY!

Here’s a fact: In the United States we consider the rights of a parent to raise their child in the manner they deem fit to be a liberty interest. In doing so, we assign to the parents a liberty interest in raising their minor child in a manner prescribed by the religious beliefs of the family. This means that if your parents are, for example, Jehovah’s Witnesses, they have a right to refuse certain medical treatments as a result of their sincerely held religious beliefs. Or, more specifically and related to today’s conversation, the Amish. And that’s…interesting, right? Because is there a right for the parent to claim their liberty interests are threatened by the state advocating for certain medical treatments that a religious order may not believe in? I mean…yeah. Yeah there is, as we see in cases like In Re Green, 292 A.2d 387 (Pa. 1972). In Green, the question before the court wasn’t vaccines, but rather a little more specific than that. There a child with a curvature of the spine that made it so he couldn’t stand could be treated if only his mother, a Jehovah’s Witness, would concede to the treatment. However, because it would have required a blood transfusion, she wouldn’t. The Pennsylvania Supreme Court came back in that case and said “Welp, here’s the thing…it won’t actually kill him to not have the surgery so….we’re gonna let the religious beliefs control this one.”

A BRIEF HISTORY OF THE RELIGIOUS EXEMPTION TO MEDICAL CARE

To understand why this is a thing, namely why a parent can step up and say “Hey, yeah, you know that life-saving thing for our kid? We don’t want that. It’s against our giant sky nanny’s edicts to do it. So…you know…fuck the kid, they can get sick and die,” you gotta go back to Tricky Dick Nixon. Alright, so in 1974 President Nixon signed into law this whole thing called the Child Abuse Prevention and Treatment Act, or “CAPTA,” which was written in part by a couple of Christian Scientists. Christian Scientists, by the way, are one of those “no treatment” sects of Christianity, you know, for God So Loved The World Your Kid Should Die of Cancer types. Prayer and not chemo was the order of the day there. Anyhow, the guys who helped write this law inserted in this sneaky little provision that specifically provided not only for a religious exemption of a parent refusing life-sustaining treatment for their child for religious beliefs, but also required states that wanted child abuse grants from the federal government to implement the same state-level exemptions. So…you know….they did. Because federal grants are to state programs like blood to a fucking vampire.

While, eventually, a reauthorization of CAPTA removed this fucking provision, the laws stayed on the books in a lot of fucking states, at last keeping them up to date in thirty-five of the fifty states we have to a varying degree. And it meant that the questions of what is and is not child abuse was solely left up to the question of state law to the degree as to whether or not the state could intercede and order the parents to provide the child with medical care (by the way, of the thirty-five states that have religious exemptions, sixteen allow courts to order treatment upon the petition of an interested party even if the parents don’t agree). Notably, these are exemptions from child abuse and neglect laws where there is a medical treatment on the table.

So, you know, we sort of gave a way for parents to try to do an end run around the whole “medical treatment that is necessary for your child” shit by saying “Hey, just claim this shit is against your religion!”

Which…I mean…okay.

YES, IT IS RIDICULOUS. YES, THIS IS WHY SOME STATES LIMIT THIS SHIT.

So we got an idea of why parents can claim this whole “religious exemption” bullshit and let their kid suffer because of Sky Nanny Inc., but there are definitely some fucking limits on this shit. For example, several states have pretty much placed into their laws a firm limit on the exemption, namely “Your right to be religious ends when it creates an immediate threat to your child’s life, you piece of shit.” Now, this is in no means universal, but it’s become kind of a compromise. And, for instance, in Pennsylvania, you know, the state that had an issue with letting a kid fucking walk because Mommy thought God told her it was bad, revisions to the law have basically said “You don’t get to kill your kid for god, asshole.”

We codified this shit in PA under 23 Pa. C.S. Section 6304(b), the section of the Pennsylvania Domestic Relations Law that determines what is excluded from the definition of Child Abuse, as follows:

(b) Practice of religious beliefs.–If, upon investigation, the county agency determines that a child has not been provided needed medical or surgical care because of sincerely held religious beliefs of the child’s parents or relative within the third degree of consanguinity and with whom the child resides, which beliefs are consistent with those of a bona fide religion, the child shall not be deemed to be physically or mentally abused. In such cases the following shall apply:

(1) The county agency shall closely monitor the child and the child’s family and shall seek court-ordered medical intervention when the lack of medical or surgical care threatens the child’s life or long-term health.

(2) All correspondence with a subject of the report and the records of the department and the county agency shall not reference child abuse and shall acknowledge the religious basis for the child’s condition.

(3) The family shall be referred for general protective services, if appropriate.

(4) This subsection shall not apply if the failure to provide needed medical or surgical care causes the death of the child.

(5) This subsection shall not apply to any child-care service as defined in this chapter, excluding an adoptive parent.

Essentially what this says is that if a parent refuses to seek medical treatment for their kid due to a bona fide religious belief, it isn’t child abuse under Pennsylvania law. However, the children and youth agency and caseworkers still have the ability, and one would argue the duty, to monitor the care of the child for a non-abuse case and, in the case that the parents’ religious beliefs threaten the life or long-term health of the child, to seek a court order directing that the child receive the care needed. So…not taking your kid to the doctor for a cold is okay, but not taking your kid to the doctor for internal bleeding is likely not okay, no matter what your god says.

And this, for Pennsylvania, is not a new and novel fucking thing, by the way. The Pennsylvania Superior Court, back in 1985, firmly decided that it doesn’t matter what Sky Daddy or Mommy says, a parent’s rights to exercise their religious beliefs free from the interference of the state ends the second the child’s life is in danger. This is specifically because, as the Court said there:

“Precisely because a child of two years and seven months cannot speak on his own behalf, the state has charged the parents with the affirmative duty of providing medical care to protect that child’s life. Faced with a condition which threatened their child’s life, the parents had no choice but to seek medical help.

. . .

We recognize that our decision today directly penalizes appellants in the practice of their religion. We emphasize that the liability attaches not to appellants’ decisions for themselves but rather to their decision effectively to forfeit their child’s life. “

Commonwealth v. Barnhart, 497 A.2d 616 (Pa. Super. 1985) (emphasis added).

In fact, as a recent case out of Berks County, Pennsylvania established, failure to seek medical care for a gravely ill child is enough to result in a conviction of manslaughter when the child dies as a result, regardless of the religious convictions of the parent that “Jesus heals all.” Until Jesus has an M.D. and is making actual, physical house calls, you don’t get a free pass on your kid’s death because you were too much of a brainwashed dipshit to take them to the hospital instead of the confessional in the Commonwealth of Pennsylvania.

[Full Disclosure: I was in the courthouse the day that verdict was announced. It was a nightmare of media.]

SCOTUS Has Previously Said “NOPE-US” to Religious Objections to Child Medical Care.

Believe it or not, the Pennsylvania (and other states’) holdings are in accordance with a well-established principle of law. Back in 1944 the Supreme Court of the United States heard a case called Prince v. Massachusetts that specifically looked at the parental right to enforce religious beliefs on their children free from state interference. That case had, really, absolutely nothing to do with medical care on the face. It was a case where an aunt who was the guardian of a 9 year old was using the kid to sell religious literature as part of their religious practices as Jehovah’s Witnesses. This conflicted with Massachusetts law, that at the time prevented the use of children under the age of 12 to distribute religious tracts to the public or allowing them to engage in any sort of labor for profit. The aunt, of course, appealed, and in a close 5-4 decision SCOTUS came down with the determination that the state has a legitimate interest in protecting minors. Specifically, the Court there stated:

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. Massachusetts has determined that an absolute prohibition, though one limited to streets and public places and to the incidental uses proscribed, is necessary to accomplish its legitimate objectives. Its power to attain them is broad enough to reach these peripheral instances in which the parent’s supervision may reduce but cannot eliminate entirely the ill effects of the prohibited conduct. We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case.

Prince v. Massachusetts, 321 U.S. 158 (1944) (emphasis added).

Now, while this may not have a holding directly on the question of religion, what it did establish is that the state has a duty to protect the fucking children from the batshittery of their parents. In doing so, SCOTUS held that where the state has expressed an interest in limiting harmful conduct by a parent, and that interest is legitimate and well-founded, the state can tell the parents to knock the shit off until the child is of an age where they can make reasoned decisions for themselves. And it was clear that this public interest included questions of healthcare for the child, as the Prince Court stated (granted in some dicta) as follows:

The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. People v. Pierson, 176 N.Y. 201, 68 N.E. 243. The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare, and that this includes, to some extent, matters of conscience and religious conviction.

Id. at 166-167.

So there you have it, a definite Supreme Court Opinion from the highest court in the land stating that a state has the absolute fucking right to force parents, despite their religious views, to get appropriate care for their child.

Except Some States Don’t Do This.

Pennsylvania has exceptions in its law specifically for this purpose: making parents liable for the serious long-term illness or death of their child when its the result of the parents not seeking medical care for the kid. There are several other states that do the same damn thing, by the way, basically saying “We believe that the health and welfare of your kid is more important in life and death situations than making your deity happy. Pray for forgiveness later, get the kid chemo now.”

However…some states don’t. For example, Ohio law has no such provision in it, instead stating, in the Ohio Rev. Code Section 2919.22(A) as follows:

No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. It is not a violation of a duty of care, protection, or support under this division when the parent, guardian, custodian, or person having custody or control of a child treats the physical or mental illness or defect of the child by spiritual means through prayer alone, in accordance with the tenets of a recognized religious body.

Notice the differences between the Ohio and the Pennsylvania code? The differences are that Pennsylvania explicitly places restrictions on the religious exemption, saying it cannot be used in cases where the child’s life is in danger. Ohio, however, has no such restriction in place, instead simply saying “Yeah, religious murder of your kid is so okay we’re not even going to call it what it is. Wouldn’t want your god pissed at you!”

And Ohio isn’t the only state to do this. You can see a lot of other states that have similar laws on the books, something that is apparently so prevalent that the National District Attorney Association has a fucking primer on the state laws and religious shield provisions for ease of access by prosecutors. Something that is even more important because, according to an article published in Pediatrics in 1998:

One hundred seventy-two children who died between 1975 and 1995 and were identified by referral or record search. Criteria for inclusion were evidence that parents withheld medical care because of reliance on religious rituals and documentation sufficient to determine the cause of death. One hundred forty fatalities were from conditions for which survival rates with medical care would have exceeded 90%. Eighteen more had expected survival rates of >50%. All but 3 of the remainder would likely have had some benefit from clinical help. When faith healing is used to the exclusion of medical treatment, the number of preventable child fatalities and the associated suffering are substantial and warrant public concern.

Child Fatalities From Religion-motivated Medical Neglect. Available from: https://www.researchgate.net/publication/51315955_Child_Fatalities_From_Religion-motivated_Medical_Neglect [accessed Jul 25 2018].

In light of the fact that SCOTUS said “Hey, fuckwits, you need to care for your kids or the state will make you,” you may be asking how the fuck states like Ohio can get away with this. Well…

Because Prince Doesn’t Matter If The States Don’t Want It To.

See, the Prince decision is from 1944, and was written at a time when there was no federal law regarding child abuse. Like the CAPTA law we spoke about before, you know, the one that forced states that wanted federal funding to implement religious shield laws. And that’s key, because the general rule of thumb is a state can provide more protection than the federal government provides, but not less. This is where it gets all legal because, with the signing of the 1974 CAPTA act (reminder, Nixon resigned later that year), states that wanted to receive federal funds for child abuse programs enacted the religious shield laws that gave more protection to the parents.

And since those laws are still on the books in some form in at least 35 states, and are only being slowly repealed, the end result is many parents can claim religious exemptions from providing medical care to their child. If the laws weren’t on the books, relying on Prince, the states would be able to say “We have a vested interest in making you go to hell if it means getting your child treated, and therefore you will give this kid a goddamn vaccination or transplant as fucking needed.” With the laws on the books, though? The states have legitimized the right of the parent to claim protection from doing the one thing that a parent is supposed to do no matter what: care for their fucking child appropriately.

Finally, the end.

And that is why we’re where we’re at now as we get ready to move next time into a discussion of the vaccination requirements and the extent to which a state can force a parent to stop listening to dipshittery from the internet and protect their goddamn kids. Which, although this shit is long post wise, it’s definitely important to understand before we move on to actually talking about parental rights when it comes to refusing vaccinations, how it plays into the religious exemption, and recent decisions from Pennsylvania and elsewhere specifically regarding this matter.

Whew.

That was a fucking mouthful.

So let’s pick up here next time on The State Can Inoculate, Part 2.

-BB