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.
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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. 
