The Volokh Conspiracy
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Court Upholds Allowing Pro-Vaccination Parent to Make Vaccination Decisions for Children
From Dutchess v. Dutch, decided yesterday (correctly, I think) by the Alaska Supreme Court:
Divorced parents disagree about vaccinating their two minor children. The father wants to vaccinate the children per their pediatrician's recommendation. The mother objects on religious grounds to vaccinating the children…. [T]he superior court issued an order granting decision-making authority concerning vaccinating the children to the father, and the mother appeals. Because the superior court's best interests determination was supported by the record and within the court's broad discretion, we affirm….
Lady Donna Dutchess and Jason Dutch were married from 2008 to 2015. They have two children, both of whom still are minors. Both parents have been involved with the children's medical care. During the marriage, both children received vaccinations. After the marriage ended, neither child received vaccinations until 2021. The children's pediatrician recommended vaccinations in December 2020, but the father declined because "he and mother have not been able to agree on vaccinations." The mother objects to vaccinations on religious grounds.
Amid various disagreements regarding custody, the father filed a motion to modify legal and physical custody and raised the vaccination issue. The superior court held an evidentiary hearing on the matter in November 2020. At the conclusion of the hearing, the court noted that it was taking the vaccination question under advisement and would issue a future order.
In April 2021, prior to the court issuing its order, the father took the children to their pediatrician for vaccinations. In a subsequent hearing, the father explained that he feared his children may have been exposed to tetanus, and noted that he had the doctor give the children only "the most important" vaccines. The younger child received vaccines for hepatitis A; measles, mumps, and rubella; polio; and tetanus, diphtheria, and acellular pertussis. The older child received vaccines for hepatitis A; human papillomavirus (HPV); meningococcal disease; and tetanus, diphtheria, and acellular pertussis.
The superior court issued an order in June 2021 granting the father sole legal custody with regard to vaccination decisions. The order provided that "Father is to confer with Mother [regarding vaccinations]. If there is a disagreement then Father makes the legal decision." The court recognized that the mother has "a [c]onstitutional right to practice her religion" but stated that religious liberty may be curtailed to protect a child's well-being, and specified that "[t]here are health benefits to having children vaccinated." The court quoted language from the United States Supreme Court's decision in Prince v. Massachusetts (1944): "[t]he 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." …
Alaska Statute 25.24.150(c) requires courts to make custody award determinations and modifications in "the best interests of the child," considering, among other things, "the physical, emotional, mental, religious, and social needs of the child" and "the capability and desire of each parent to meet these needs." … The record in this case supports the superior court's finding that granting the father the authority to make vaccination decisions served the children's best interests. The children's pediatrician documented that she "[d]iscussed with father vaccine indications and benefits" and "that not vaccinating his child could result in severe illness, disability and even death." The father testified that he had the children vaccinated because he was concerned about a possible tetanus exposure and that he had the pediatrician administer only the vaccines she felt were "most important." Given the pediatrician's recommendations to vaccinate the children, and the father's willingness to consider those recommendations, the court did not clearly err in its best interests determination. {See, e.g., Shea v. Metcalf (Vt. 1998) (affirming decision awarding medical decision-making authority to a father who wanted his children vaccinated when a board-certified pediatrician testified in support of the father's position); In re A.J.E. (Tex. App. 2012) (relying on a court-appointed physician's advice when there was a dispute between parents over vaccinating the children).} …
We are not convinced that heightened scrutiny [applied under the Alaska Constitution's religious freedom provision] necessarily applies to child custody determinations allocating decision-making authority between parents, nor did the parties brief this issue. We note that several other state courts have concluded that strict scrutiny does not apply to a custody determination between parents with divergent religious convictions. In Bonjour v. Bonjour (Alaska 1979) we addressed a parent's establishment clause claim, explaining that courts generally must maintain neutrality toward parents' religious beliefs or lack thereof when analyzing children's best interests and making a custody determination. We recognized that a court's application of custody statutes in a manner exhibiting "a preference for the religious over the less religious" would essentially place "government on the side of organized religion, a non-secular result that the establishment clause is designed to prevent." Consistent with our analysis in Bonjour, the superior court here properly considered how the mother's desire not to vaccinate the children was contrary to the recommendation of the children's pediatrician and counter to their best interests….
[But e]ven if we were to apply heightened scrutiny pursuant to Frank v. State in analyzing the mother's free exercise challenge, the superior court's ruling would withstand review. The State has "an undeniably compelling interest in protecting the health of minors." Other jurisdictions ruling on vaccine mandates have more specifically held that protecting the health of individuals and the community is a compelling government interest. {See Brown v. Stone (Miss. 1979); Wright v. DeWitt Sch. Dist. No. 1 of Ark. Cnty. (Ark. 1965); Whitlow v. California (S.D. Cal. 2016) ("There is no question that society has a compelling interest in fighting the spread of contagious diseases through mandatory vaccination of school-aged children. All courts, state and federal, have so held either explicitly or implicitly for over a century."); Shepp v. Shepp (Pa. 2006) (explaining that the state has a compelling interest to protect a child from threats to the child's welfare); Roberts v. Roberts (Va. App. 2003) ("[T]he protection of children from harm, whether moral, emotional, mental, or physical, is a valid and compelling state interest.").} Because the State has an interest of the highest order in protecting the children's health that, given the evidence in this case, would not be served by awarding the mother legal authority to make vaccination decisions, the superior court's ruling withstands the Frank analysis….
{The mother asserts that by awarding vaccine decision-making to the father, the superior court violated the regulation governing vaccine requirements for children prior to their admission to school, citing 4 Alaska Administrative Code (AAC) 06.055(f) (2018). The regulation provides an exception if the child "has an affidavit signed by his parent or guardian affirming that immunization conflicts with the tenets and practices of the church or religious denomination of which the applicant is a member." This regulation addresses admission to school, not internal family decision-making. It does not bar one parent vaccinating their child over the objection of another parent. Therefore, it does not apply in this situation.}
