Freedom of Religion

State May Vaccinate Children in Its Custody, Even Over Parents' Objection

So a New Jersey appellate court held today.

|The Volokh Conspiracy |

From N.J. Div. of Child Protection & Permanency v. J.B. (N.J. Super. Ct. App. Div.):

The age appropriate immunizations required by N.J.A.C. 3A:51-7.1(a)(2) are a reasonable means of ensuring the health and safety of the children in the care and custody of the Division, especially during a measles outbreak. Parental rights must yield to the safety and well-being of Son and Daughter under these circumstances. See, e.g., Sadlock, 137 N.J.L. at 88 ("[T]he police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety." (quoting Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905))). Requiring immunization is an appropriate use of the State's police power. Providing age-appropriate vaccinations to Son and Daughter will protect them from needlessly contracting diseases that would subject them to potentially serious complications. Children in the care and custody of the Division deserve nothing less.

The children have been in the continuous care and custody of the Division since October 2017. {Father is a Megan's Law offender subject to community supervision for life. As such, Father is prohibited from "initiating, establishing, or maintaining" or "attempting to initiate, establish, or maintain contact with any minor" and from "residing with any minor," which includes "[s]taying overnight at a location where a minor is present" without prior approval from the District parole Supervisor. [The children were removed from mother's custody because, despite that prohibition,] Father was living with the children and Mother was allowing Father to have unsupervised contact with them.} While parents do not lose all of their parental rights when their children are placed under the care, custody, and supervision of the Division as a result of substantiated abuse and neglect, they are situated differently than parents who retain legal and physical custody.

When children are removed from parents under Title 9, the Division is charged with the duty to provide appropriate medical care and treatment. We view this duty as encompassing the authority to administer age-appropriate immunizations over the religious objections of the parents. See In the Interest of C.R., 570 S.E.2d 609 (Ga. Ct. App. 2002); In re Deng, 887 N.W.2d 445 (Mich. Ct. App. 2016); In re Stratton, 571 S.E.2d 234 (N.C. Ct. App. 2002); Dep't of Human Servs. v. S.M. (In re M.M.), 323 P.3d 947 (Or. 2014). To rule otherwise would needlessly jeopardize the health and safety of children in placement and undermine the discharge of the Division's duty to provide care, particularly when a known risk of exposure to a disease preventable by vaccination is present.

NEXT: Interesting Vagueness Case That the Court Is Being Asked to Hear

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  1. Sigh….

    Standard disclaimer. Vaccines are good and proper. That being said.

    1. From a reading of the facts of the case, realistically it appears that the state should work to terminate the mother and father’s parental obligations, and give guardianship to a different couple. That couple could then make vaccine decisions for the children.

    2. If the state doesn’t do this however, I don’t agree with overruling the parents religious objections, and forcing vaccination upon the children. If the parents still have parental rights and obligations, then it is their decision to make.

    3. I also don’t like what else this may lead. If religious or moral obligations to vaccines are overridden, what else may be? Other medical decisions? Gender reassignments? Do parents have “any” rights as to how their raise their children?

    1. Constitutionally parental rights are dubious since they aren’t found anywhere. Obviously there is caselaw saying they do but the contours of it are far from settled. And freedom of religion being a personal right doesn’t necessarily transfer to a child. This why parents who don’t believe in medicine, but only faith healing, can be charged with child endangerment, neglect, etc. if one of their children gets extremely sick or dies from an otherwise treatable disease.

      So the question is where is the line between parent gets to make the decision and state can force it (by doing it if in their custody or taking custody or criminally prosecuting). That line really becomes more set by the state itself politically rather than through courts.

      1. “Constitutionally parental rights are dubious since they aren’t found anywhere.”

        9th amendment. Parental rights are actually prior to the Constitution, and among those rights that were considered too obvious to bother enumerating.

    2. There is also the separate complicating factor with vaccination that it affects not just your child but the public health. This is different for instance than determining whether a child with some ailment should be treated with medication or surgery. Or whether to do a more risky procedure that has potentially greater benefits than another option.

      I really struggle with where I stand on mandatory vaccinations because of these complicating factors. That is since the general rule of your rights stopping at my nose.

    3. “Do parents have “any” rights as to how their raise their children?”

      In practice, probably not. Remember the case where Boston Children’s Hospital took a girl from her parents because the parents credited the diagnosis of the girl’s own doctor over the doctors at Boston Children’s? I suspect that that happens more often than we realize.

    4. Armchair:
      On (1), there is an issue of timeliness. The measles outbreak is happening right now while the kids are in state custody. Prompt vaccination can protect them; vaccination in the future cannot prevent infection right now. Delaying the decision to permit time for court actions to terminate the mother and fathers parental obligations and granting it to someone else means the kids remain at risk.

      With respect to any slippery slope argument: It’s worth noting these aren’t generic parents. They are parents who already have lost *some* of their parental rights as a result of their behavior toward the children. They lost custody and presumably aren’t making daily decisions about meals, choice of clothing, supervising friendships, selecting schools and so on. They obviously can’t decided to do something like quarantine their unvaccinated child to avoid measles. It’s not clear to me they should have absolutely veto power over something like vaccinations during an actual outbreak merely because that belief happens to fall under a “religion” umbrella.

  2. Children should be vaccinated unless a medical reason (I understand chemotherapy is an example) makes vaccination dangerous for the child. Parents should not be entitled to endanger their children, and other children, by refraining from ensuring that children are not vaccinated. Belligerent failure to arrange vaccination probably should generate a rebuttable presumption that the interests of a child incline a change in custody.

    1. Agree fully, Arthur. The tribe has the obligation to protect the herd https://www.vaccinestoday.eu/stories/what-is-herd-immunity/

    2. So much for medical decisions being between a woman and her doctor.

  3. Let’s just say I have a real hard time with the government deciding what they can inject into people without permission.

    That hasn’t turned out well in the past.

    1. It’s certainly been a slippery slope, as well:

      “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.”

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  5. Good. Nobody has a right not to vaccinate because doing so violates the NAP and risks infecting myself and others. If consenting adults want to violate the NAP, they can feel free to do so in exile.

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