A mother in New York State who claims to oppose vaccines because of her Catholic faith lost an emergency appeal to the Supreme Court of the United States (SCOTUS) this week—though Justices Samuel Alito and Neil Gorsuch said they would have granted her application. For now, the woman’s kindergarten-aged son must be vaccinated to attend school.
Legal scholars who spoke to CIDRAP News were not surprised this particular appeal failed, but agreed that the Supreme Court might soon address the issue of religious exemptions to vaccines.
SCOTUS has “moved steadily closer to advancing” free exercise rights under the First Amendment, which protects people’s ability to practice religion without government interference, explained James G. Hodge Jr., JD, LLM, director of Arizona State University’s Center for Public Health Law and Policy.
“It would not surprise me to see this Court strip states of its denials of religious exemptions given repeated, annual requests in manifold other cases seeking the Court’s decision on this question,” he said.
While opposition to vaccine mandates is stronger among Republicans, it’s hard to know how the Supreme Court’s six conservative justices might vote, said Marci Ann Hamilton, JD, MA, a senior fellow in the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania, and former clerk to the late Justice Sandra Day O’Connor.
The Catholic Church supports vaccine mandates, and Hamilton said that might influence the conservative justices, five of whom are practicing Catholics. Additionally, conservative Justice Neil Gorsuch, now an Episcopalian, was raised Catholic, as was liberal Justice Sonia Sotomayor.
Liberal Justices Elena Kagan and Ketanji Brown Jackson are Jewish and nondenominational Protestant, respectively.
The First Amendment protects religious freedom, but to what point?
The religious vaccine exemption case that might stand the strongest chance of winning at the Supreme Court also comes out of New York, one of four states that don’t permit personal or religious exemptions for school vaccine requirements.
In Miller v. McDonald, a group of Amish parents whose children attend private schools in Upstate New York claim their faith prohibits vaccination.
The case has volleyed from the 2nd Circuit Court of Appeals to the Supreme Court, which told the lower court to reconsider Miller in light of another religious freedom case, Mahmoud v. Taylor.
In Mahmoud, a 6-3 SCOTUS ruling sided with a multi-faith group of parents in Montgomery County, Maryland, who argued the First Amendment accorded them the religious freedom to opt their children out of English language curricula based on books featuring LGBTQ+ characters.
Despite the Supreme Court sending Miller back to the 2nd Circuit with the new instruction, the lower appellate court again sided with the state in late June, finding that the Amish parents did have to vaccinate their children if they wanted them to attend school.
Aaron Siri, JD, the attorney for the parents in Miller, told CIDRAP News his clients plan to appeal back to SCOTUS.
“If we do not respect the First Amendment religious liberty rights of the Amish, that right is of little value to anyone in this country,” he said.
Siri’s framing is “grossly inconsistent” with the previous Supreme Court rulings, said Hodge.
“I do not think anyone with an understanding of the scope—and limits—of First Amendment freedoms would condone such a statement,” he said.
Amish parents might have a stronger argument for religious exemption
There are a couple of plausible reasons the Supreme Court might be willing to reconsider Miller, despite denying the emergency appeal from the Catholic mother of the kindergartener, who filed under the pseudonym Jane Doe.
For one, Miller has been fully briefed and has gone through the 2nd Circuit twice. That gives the justices more material to work with, said Dorit Reiss, JD, PhD, an expert in legal and policy issues related to vaccines at the University of California College of the Law, San Francisco.
Also, Reiss said the Amish parents “have a pretty strong argument that they’re sincerely objecting on religious grounds, though it’s not perfect.”
Even though the legal standard focuses on individual belief, Reiss said the Catholic mom faced a more uphill battle since her faith-based argument—that vaccine ingredients desecrate the body—diverges from Catholic teaching.
Some Amish parents do vaccinate their kids, as there isn’t a specific theological basis for the group to oppose immunizations. But Reiss said the parents who brought Miller still have a clearer argument because of a more comprehensive belief system that’s based, in part, on rejecting technology. Also, some Amish individuals believe that vaccinating against infectious diseases shows a lack of faith.
Another possibility, Hamilton said, is that the Supreme Court is waiting to tackle religious exemptions to vaccine mandates until after it considers St. Mary’s Parochial School v. Roy, which is scheduled for oral arguments on November 3. The case concerns a Catholic preschool in Colorado that wants to receive taxpayer funds from the state’s universal preschool program but refuses to enroll students with same-sex parents.
“[This] is a monumental religious liberty case they may well want to decide ahead of further religious liberty issues,” she said.
Even if SCOTUS doesn’t reconsider Miller and the Amish parents’ second appeal fails, Hodge shared data showing that since May, more than a half dozen petitions have been filed with the Supreme Court by people who claim mandatory vaccine policies have harmed their right to religious freedom.
The issue is not going away.