By John T. Anderson
TIMES RECORD • JANDERSON@SWTIMES.COM
Arkansas law regarding immunization of school children is partly unconstitutional because it requires families to define their religion, a federal judge ruled Thursday.
However, the child whose family brought the lawsuit against Ozark schools and state officials still must take the shots in order to attend schools, U.S. District Judge Robert Dawson ruled.
Danielle McCarthy, 11, was expelled from Ozark schools last year after her family refused to allow the girl to be vaccinated for Hepatitis B because of religious reasons. Officials with the state Department of Health said the girl did not qualify for a religious exemption because her family did not provide details of its religious practices and beliefs.
The girl’s father, Dan McCarthy, filed a lawsuit in U.S. District Court in Fort Smith, claiming state law that demanded the vaccinations infringed upon the family’s rights. The state Department of Health, its director Fay Boozman along with certain employees of the department and the Ozark School District were named as defendants.
In his order, Dawson stated the religious exemption section of the law “clearly runs afoul of the establishment and free exercise clauses of the First Amendment and the equal protection clause of the Fourteenth Amendment because the exemption benefits only those who are members or adherents of a church or religious denomination recognized by the state. ... The provision fails ... because its primary effect is to inhibit the earnest beliefs and practices of those individuals who oppose immunization on religious grounds but are not members of an officially recognized religious organization.”
The order gives each side something. McCarthy gets the satisfaction of seeing a portion of state law ruled unconstitutional. The Ozark school system and the state get confirmation that students must be immunized before entering school doors.
“It has long been settled that individual rights must be subordinated to the compelling state interest of protecting society against the spread of disease,” Dawson wrote.
Last year, Dawson granted a preliminary injunction in the case, allowing the girl to return to school without the vaccinations until the lawsuit was resolved. His latest order dissolves that injunction.
McCarthy, in his original complaint, stated his belief that the body is “the temple of the Holy Spirit” and that God gave his daughter “an immune system that will be violated by the induction of vaccinations.”
McCarthy said he and his wife are not part of an established church but read the Bible and attended a group that meets weekly called “Hearts of Hope,” which he described as a “marriage ministry.”
Robert Brech, the attorney who represented the Department of Health in the lawsuit, did not respond to a telephone message on the issue late Thursday. Greg Karber, the Fort Smith attorney who filed the lawsuit on McCarthy’s behalf, also did not respond to a telephone message left at his office.