The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From the Chicago Sun-Times (Bob Chiarito):
In what many say is the first ruling of its kind, a divorced Pilsen mother has had her child visitation revoked by a Cook County judge because she is not vaccinated against COVID-19.
On Aug. 10, Cook County Judge James Shapiro barred Rebecca Firlit, the mother of an 11-year-old boy, from seeing her son…..
Firlit's attorney, Annette Fernholz, … said the issue was not raised by her ex-husband.
Rather, the judge asked Firlit if she was vaccinated during a child support hearing via Zoom, and when she said no, the judge stripped her of all parenting time with her son until she gets vaccinated.
"I've had adverse reactions to vaccines in the past and was advised not to get vaccinated by my doctor. It poses a risk," Ferlit told the Chicago Sun-Times….
For now, she is relegated to only speaking with her son on the phone….
In principle, I can imagine situations where an unvaccinated parent could be barred from being around a child. Generally speaking, such changes in custody rules require a substantial change of circumstance, in a way that substantially affects the "best interests of the child." Serious threats to the child's health could qualify, for instance if the parent was actually ill and contagious, or if the parent was at imminent risk of acquiring and transmitting, say, smallpox or some such extraordinarily deadly disease. Parental rights can indeed be limited in various ways, and for good reason. Many of our rights are rights to control our minds and our bodies; parental rights are rights to control someone else.
But it appears that over the last year and a half, there have been 131 deaths of 5-to-14-year-olds that the CDC classifies as U.S. "COVID-19 deaths," out of over 41 million children in that age band. That's an annual death rate of about 2 per million (compared to 37 per million for accidents, or 3 per million for the flu); and while this doesn't count other effects of the illness, which can be quite serious for many, my understanding is that for children such serious effects are likewise very rare. (None of the news stories I've seen suggest that the child has some medical condition that makes him especially vulnerable to COVID, though of course one should be hesitant when dealing with media accounts.)
What's more, the question isn't whether the child is to be vaccinated (as I understand it, he still can't be, because the vaccine hasn't been authorized for under-12-year-olds); that would at least quite directly affect his vulnerability. Rather, the question is just whether he should be exposed to the unvaccinated mother, who is one theoretical possible source of infection for him—he would of course still be exposed to lots of other unvaccinated people, including many unvaccinated classmates. So the overall possible effect on his health from exposure to the mother is even tinier than the numbers in the preceding paragraph suggest.
It seems to me that it should be well within a parent's discretion to expose a child to what appear to be such extremely minor risks (whether a parent who shares custody with an ex, or a parent in an intact family). And that's especially so when there's a good reason for it, such as the mother's health (at least according to the mother's account).
But there's also a deeper problem here, again if the media accounts are correct: The Due Process Clause generally requires that, before someone's rights are taken away, that person is given notice and an opportunity to be heard—and it appears that the judge just came up with this, without Firlit having sufficient notice. If she had such notice, she might have been able to produce more evidence about the doctor's advice not to get vaccinated, or about the minimal risk to her son stemming from her being unvaccinated, or about whatever other factual or legal arguments might be relevant to the decision. And while in an emergency, the government can often act before a hearing, the low risk to the child in this case seems to suggest there was no such emergency.
In any event, though, I stress again that this is my tentative analysis based on press accounts. Firlit is apparently appealing, so perhaps the appellate court will give us more factual and procedural details.