Mark R. Ashton (vaccinated)

This week both the Washington Post and the Chicago Sun-Times reported on a case in Chicago where a court decided whether a parent who was unvaccinated against COVID-19 could continue to visit with her 11-year-old child.  The judge initially ruled that visits would be suspended.  The news reports indicate that the subject arose during a remote (e.g. Zoom) hearing regarding child support.  Yesterday, it was reported that the judge had reversed the ruling.

For reasons this writer cannot understand, vaccination seems to have become a constitutional rather than a public health issue.  What makes this so unusual is the fact that vaccination is scarcely new and until the last year was almost entirely non-controversial.  For example, in Pennsylvania, to attend public school a child must be vaccinated against tetanus, diphtheria, acellular pertussis, polio, measles, mumps, rubella, hepatitis B and chickenpox.  State regulations do allow for medical exemptions as well as religious and philosophical exceptions.  There have been cases where religious and philosophical issues have been litigated but they have been quite rare.  Yet, for some reason, this communicable disease (Covid-19) appears to have tapped a wellspring of opposition despite a history of 2 to 3 billion vaccinations this year with few serious adverse reactions.  Suffice to say, if large swaths of the population invoke their philosophical rights to avoid vaccination, we better plan on seeing a resumption of childhood disease which used to kill 20% of children under 5.

Setting that topic aside, courts have a tricky path to follow when parents disagree about vaccination of a child.  According to the US Supreme Court parents have a fundamental right to raise their children as they wish.  Meanwhile, the Supreme Court has carved some noteworthy exceptions into that Rosetta stone.  In 1972, an 8-1 majority of the US Supreme Court held that Wisconsin had the right to insist that children be educated through eighth grade but not beyond that level.  Wisconsin v. Yoder, 406 U.S. 205.  In an earlier case, Prince v. Massachusetts, the Supreme Court found that the right to practice religion freely does not include liberty to expose the community or its children to communicable disease or the latter to ill health or death.  “Parents may be free to become martyrs themselves.  But it does not follow that they are free, in identical circumstances, to make martyrs of their children.” 321 U.S. 158.

The principle involved has a Latin name, parens patriae.  Religious and parental rights must be subordinated to society’s right to keep kids safe.  Speaking for the majority in Prince, Justice Wiley Rutledge wrote that states “may restrict the parent’s control by requiring school attendance, regulating child labor and in many other ways.” Thus, a parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds.”  The Court cited a 1905 case, Jacobson v. Massachusetts, where an adult was fined for failing to accept mandatory smallpox vaccination after the County had declared an emergency and state law authorized emergent vaccinations.  In Jacobson, the person fined asserted as his defense that he had a history of adverse reactions to prior vaccinations.  The fine was upheld in a 7-2 decision.  Private rights are subordinate to public health and safety.

In so ruling, the Jacobson court made clear that public health and safety needs were subject to judicial scrutiny to avoid abuse.  The Court added, “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”  But, the existence of controversy over the efficacy of the public health regulation does not invite to evaluate whether the regulation was the best solution.  “The fact that the belief [incorporated in the health regulation] is not universal is not controlling, for there is scarcely any belief that is accepted by everyone.  The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive, for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.”

Turning back to our Chicago case, we start with a jurisdictional problem. The issue before the court that day was not vaccination; it was not child custody.  The matter to be decided was child support.  Neither the litigants nor the Court came prepared to evaluate what preventative measures were needed to keep the child safe.  So, the Court was wrong to have decided a matter not scheduled for resolution, viz., the child’s health needs.  For that reason alone, the judge was correct to reverse any ruling that went beyond the support needs of the child.  That part is easy.

However, the vaccination issue is well within the province of a court deciding custody.  Nevertheless, the regulatory environment is not nearly as clear as it was in 1905.  In Jacobson, the state had passed a law expressly authorizing local health officials to mandate vaccination.  The County officials were enforcing that law when they “stuck” Henning Jacobsen with his $5.00 fine.  Today, the chain of command is not so clear.  Despite 1,300,000 cases and 28,000 deaths there seems to be no legislative will in Pennsylvania to force this issue.  Judges are creatures of law and they take an oath to adhere to legislative or executive precedent in deciding cases.  Certainly, both the federal and state executive branches are exhorting the benefits of vaccination.  But no one is mandating it.  On August 10, Pennsylvania’s governor mandated state employees in health facilities and prisons either vaccinate or accept weekly testing.  So, as a judge, whatever my views may be personally, I have no authority to require vaccination beyond what either the legislature has enacted, or the governor has issued by proclamation.  Although judges can sometimes miss this in the heat of battle, it is not their job to substitute or inject “their” preference into a custody dispute.  It is to assure that the best interests of the child are protected when viewed from a societal viewpoint.  Thus, we have observed one custody officer indicate that he would not decide whether a child should or should not play football because there was no societal interest in that question.

In our Chicago case, we have an eleven-year-old child; too young to be vaccinated.  We have one parent who is vaccinated but current medical thinking is that even a vaccinated parent can carry the virus and infect a child.  The other parent chooses not to be vaccinated.  The child’s custody schedule mandates visits to both households.  Can a court order a child vaccinated where parents disagree, assuming there is authorization to administer the vaccine to kids?  Can a Court suspend visits until a parent is vaccinated as a matter of protecting the child?  When I started writing this post, I would have said yes.  But as I walked through the judicial precedent cited above, I have become less sure.  Lots of government agencies are recommending it.  Yesterday, there were 2,300 new cases in the state.  Yet, no state agency is requiring vaccination; even in state run health care facilities.  If I am a judge my responsibility is to follow the law, not to make it.  The idea of suspending visits may sound appealing but note the prescription of what Justice Harlan wrote in Jacobson.  The public health enactment is not valid if it does not effectively solve or ameliorate the health condition involved.  If a vaccinated mother can still transmit Covid-19 what has her inoculation done to protect the child?  The answer might be it contributes to attainment of what epidemiologists call herd immunity.  But, shouldn’t the court then direct vaccination of the entire herd?