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Immunization Debate Raises Unusual Questions

Julia C. Mead

New York Law Journal

August 10, 2000

When Theresa Quigley read the fax that arrived the morning of June 23, she knew immediately that it posed a deceptively simple legal question. “I thought, ‘this is not going to be easy,’” she said.

The fax from the Bridgehampton School asked Quigley, the managing partner of Payne Wood & Littlejohn’s office in Bridgehampton, N.Y., to help the school board decide whether to waive the immunization requirement for five children whose parents are strict vegetarians.

Quigley said she knew the law requires all school children to be immunized, although it allows exceptions for health or religious reasons.

“But I was leery. The mere asking of the question makes me feel that this could impact First Amendment rights. And who am I to do that?” she said.  “I tend to think too much about the way a person perceives a thing. I’m supposed to be the voice-piece of the law, but I certainly didn’t want to be perceived as judging someone else’s personal views.”

The three sets of parents had each requested waivers on “religious, philosophical, and medical grounds,” as one parent put it in his letter to the firm, because some vaccinations are cultured using cow and human fetal cells. And they stressed that their commitment as vegans—such strict vegetarians that they eschew even dairy, fish and leather products— was inextricably linked to their spirituality.

“We are people of faith, seekers of universal truth, imbued by our Creator with a conscience. ... Although we come from different religious backgrounds, ultimately there is one religion, one truth, and that is love. We do not vaccinate our children out of love,” wrote Jerry Cimisi, who has become one of the most outspoken parents.

REPRESENTS DISTRICTS

Quigley’s firm, headquartered in Melville, N.Y., represents several school districts across Long Island. She knew that an associate in the main office, Mark Cuthbertson, had dealt with the immunization question before. His advice was unqualified: The parents’ request did not meet the legal standard for a religious exception and the school board could refuse the waivers.

Still apprehensive, Quigley decided to review the research materials herself.

She read Section 2164 of the State Public Health Law, which now requires school children to be immunized against polio, mumps, measles, diphtheria, rubella, chicken pox and hepatitis B. And, subsections 8 and 9 allow exceptions when a doctor certifies that immunization would be “detrimental to a child’s health” or when a “genuine and sincere religious belief” would prohibit it.

She read Matter of Christine M., decided in Kings County Family Court in 1992. Judge Gloria M. Dabiri ruled that a child whose father was an evangelical missionary for the Church of God Seventh Day was indeed a “neglected child” in the context of the Family Court Act.

The judge found that her father had failed to have her inoculated against the measles in the midst of an epidemic, not because his church prohibited it but because he believed in holistic health care.

In Galinsky v. Board of Education, Quigley found that the Second Circuit Court of Appeals likewise decided, just last May, that a parents’ suit was “not motivated by religious beliefs, but rather, by plaintiffs’ personal fears for their daughters’ well-being.”

And she read Sherr v. Northport, in which U.S.  District Court Judge Leonard D. Wexler granted a waiver to one set of parents who were Christian Scientists, the Levys, but denied another, the Sherrs, who had joined a mail order church to further their suit. The judge ruled that the school district had violated both the Establishment and Free Exercise clauses of the First Amendment in the Levy instance, but the Sherrs had espoused religious views that were not sincerely held.

TWO QUESTIONS

“It came down to two questions for me: Who’s to define religion? And, who’s to say no to these parents just because they may not be properly articulating the legal standard?”

Quigley said.

In answer to the first question, she decided that “religion has to do with some belief in a supreme being” and “it has to be something internal.  It has to be here,” she said, pointing to her heart. “It doesn’t have anything to do with science or government.”

So, she re-read the parents’ letter, and decided that it focused mostly on their objections as vegans while making a weak argument about the link to spirituality. She ended up agreeing with Cuthbertson, and the Bridgehampton School Board ended up agreeing with her, voting to deny the waivers just three days after sending her the fax.

That, she said, was the easy part.

The hard part for her, a mother of five with her own deeply held religious views, was facing the parents’ angry reaction at a subsequent school board meeting, she said. They threatened to sue.

“These people are looking at me like I’m the devil.  They’re looking at the school district as a huge brick wall that is keeping them from living their lives the way they want to live them. I don’t want people to perceive me or the law that way,” she said.

SEEN AS ‘IRRATIONAL’

Cimisi, whose 5-year-old daughter attended the Bridgehampton School’s preschool for a year and a half before the school demanded an immunization certificate, said last week that he was angrier at what he called an “irrational” legal standard.

“They institute something on a scientific basis, but it’s totally absurd to ask us to oppose it on a totally non-scientific basis,” he said. “If I objected as a Catholic who was against the abortions that provide the fetal cells used in these immunizations, they would probably be inclined to grant us the waiver. And, if a student with AIDS came to the school, the school would legally have to take in that child, but my child doesn’t have any illnesses.”

He wrote again to Cuthbertson on July 8, offering his own legal research. He cited the case of Susan and Andrew Bailey, who sued the nearby Westhampton Beach and East Quogue, N.Y., school districts in 1992. In that case, U.S.  District Court Chief Judge Thomas Platt granted the Baileys the exemption, citing a 1990 amendment to State Public Health Law that had replaced the old standard—bona fide members of a recognized religious organization—with the current standard, “genuine and sincere religious beliefs.”

Cimisi also pointed to Berg v. Glen Cove, a 1994 case also decided by Judge Wexler, who granted an injunction against the school barring 5-year-old twin girls whose parents espoused religious beliefs based on recognized Jewish teachings and their own interpretation of Hebrew gospel, particularly Leviticus XI, 44: “Neither shall ye defile yourselves with any manner of swarming thing that moveth upon the earth.”

Though a rabbi had testified for the defendants that nothing in Jewish teachings precluded inoculation, the court ruled that the Bergs’ beliefs were sincere and religious in nature.

Cimisi said he believes his daughter has a “de facto exemption” because she attended the Bridgehampton School for a year a half before an immunization certificate was demanded.

Since the school board’s June 26 decision, he said he has consulted “several” lawyers but is still hoping “to avoid the time and expense of a lawsuit.”

He said he hoped to convince the school board that a second legal opinion might find that the Bailey and Berg decisions had paved the way for his own child, who is a vegetarian but not yet a vegan, to be exempted.

“I say that it is my spiritual belief that I don’t use animal products. Who’s to say otherwise?” he said, adding that he has been a vegetarian for 30 years and a vegan for 16 years.

Though she reached a different conclusion, Quigley seemed to agree with his premise. “I can’t define my own belief. I can’t intellectualize it. It’s non-logical. I still don’t know how to define religion, but I know it when I see it,” she said.

ALL INFORMATION, DATA, AND MATERIAL CONTAINED, PRESENTED, OR PROVIDED HERE IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT TO BE CONSTRUED AS REFLECTING THE KNOWLEDGE OR OPINIONS OF THE PUBLISHER, AND IS NOT TO BE CONSTRUED OR INTENDED AS PROVIDING MEDICAL OR LEGAL ADVICE.  THE DECISION WHETHER OR NOT TO VACCINATE IS AN IMPORTANT AND COMPLEX ISSUE AND SHOULD BE MADE BY YOU, AND YOU ALONE, IN CONSULTATION WITH YOUR HEALTH CARE PROVIDER.