Constitutional Basis of Mandatory Vaccination - CDC summary

Posted on: May 19, 2020 at 12:24:31 CT

starting on p. 10 of the .pdf

https://www.cdc.gov/vaccines/imz-managers/guides-pubs/downloads/vacc_mandates_chptr13.pdf

Police Power

The first state law mandating vaccination was enacted in Massachusetts in 1809; in 1855, Massachusetts became the first state to enact a school vaccination requirement. The constitutional basis of vaccination requirements rests in the police power of the state. Nearly 100 years ago, the U.S. Supreme Court issued its landmark ruling in Jacobson v. Massachusetts,33 upholding the right of states to compel vaccination. The Court held that a health regulation requiring smallpox vaccination was a reasonable exercise of the state’s police power that did not violate the liberty rights of individuals under the Fourteenth Amendment to the U.S. Constitution. The police power is the authority reserved to the states by the Constitution and embraces “such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety”a (197 U.S. at 25, 25 S.Ct. at 361).

In Jacobson, the Commonwealth of Massachusetts had enacted a statute that authorized local boards of health to require vaccination. Jacobson challenged his conviction for refusal to be vaccinated against smallpox as required by regulations of the Cambridge Board of Health. While acknowledging the potential for vaccines to cause adverse events and the inability to determine with absolute certainty whether a particular person can be safely vaccinated, the Court specifically rejected the idea of an exemption based on personal choice.b To do otherwise “would practically strip the legislative department of its function to [in its considered judgment] care for the public health and the public safety when endangered by epidemics of disease” (197 U.S. at 37, 25 S.Ct. at 366). The Court elaborated on the tension between personal freedom and public health inherent in liberty: “The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members” (197 U.S. at 26, 25 S.Ct. at 361).

School Vaccination Laws

The Supreme Court in 1922 addressed the constitutionality of childhood vaccination requirements in Zucht v. King.34 The Court denied a due process Fourteenth Amendment challenge to the constitutionality of city ordinances that excluded children from school attendance for failure to present a certificate of vaccination holding that “these ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health”c (260 U.S. at 177, 43 S.Ct. at 25).

More recently, in the face of a measles epidemic in Maricopa County, Arizona, the Arizona Court of Appeals rejected the argument that an individual’s right to education would trump the state’s need to protect against the spread of infectious diseases short of confirmed cases of measles in the particular school. Given the nature of the spread of measles and the lag time in getting laboratory confirmation of cases, the court in Maricopa County Health Department v. Harmon35 was satisfied that it is prudent to take action to combat disease by excluding unvaccinated children from school when there is a reasonably perceived, but unconfirmed, risk for the spread of measles (156 Ariz. at 166, 750 P.2d at 1369). Although the court considered the right to education under Arizona’s constitution, the decision is instructive in showing the reach of the police power to ensure the public health. The court in Maricopa specifically noted that Jacobson did not require that epidemic conditions exist to compel vaccination (156 Ariz. at 166, 750 P.2d at 1369).

Parens Patriae

Further authority to compel vaccination of children comes under the doctrine
of parens patriae in which the state asserts authority over child welfare. In the
1944 case of Prince v. Massachusetts,36 which involved child labor under an
asserted right of religious freedom, the U.S. Supreme Court summarized the
doctrine, noting that

Neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard
the general interest in youth’s well being, the state as parens patriae may restrict the
parent’s control by requiring school attendance, regulating or prohibiting the child’s
labor, and in many other ways. Its authority is not nullified merely because the parent
grounds his claim to control the child’s course of conduct on religion or conscience.
Thus, he cannot claim freedom from compulsory vaccination for the child more than for
himself on religious grounds. The 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.d (321 U.S. at 166–7, 64 S.Ct. at 442)

LEGAL ISSUES AND CONTROVERSIES—EXEMPTIONS TO MANDATORY VACCINATION

Although vaccines are safe and effective, they are neither perfectly safe nor perfectly effective. Some persons who receive vaccines will have an adverse reaction, and some will not be protected. In developing vaccines, the challenge is to minimize the likelihood of adverse effect while maximizing effectiveness. Some people have medical conditions that increase the risk for adverse effect, and therefore they should not receive vaccines. Recognizing this fact, all state vaccination laws provide for exemptions for persons with contraindicating conditions.

The religious beliefs of some people are in opposition to vaccination, and other people oppose vaccination on other grounds, including philosophic. In addition, some persons are not opposed to all vaccines but oppose the concept of mandatory vaccination or mandates for specific vaccines. In the latter case, they may believe they (or their children) are not at risk for a particular disease or that, if contracted, the disease is not severe. If the disease in question is uncommon (as is the case in the United States today for most vaccine preventable diseases), they might not be willing to undertake any level of risk
of adverse effect.

Forty-eight states allow religious exemptions (all but Mississippi and West Virginia), and 15 (California, Colorado, Idaho, Louisiana, Maine, Michigan, Minnesota, New Mexico, North Dakota, Ohio, Oklahoma, Utah, Vermont,
Washington, and Wisconsin) permit philosophic exemptions29 (RH Snyder, National Immunization Program [NIP], CDC, personal communication). The criteria for allowing these exemptions vary greatly. Some states require member­ship in a recognized religion,e whereas others merely require an affirmation of religious (or philosophic) opposition. Nationwide, fewer than 1% of school entrants have medical, religious, or philosophic exemptions to mandatory vaccination. Seven states had more than 1% with exemptions in the 1997–1998 school year (Colorado, Michigan, Oregon, South Dakota, Utah, Washington, and West Virginia [those with philosophic exemptions are italicized]). Michigan had the highest level of exemption at 2.3% (RH Snyder, NIP, CDC, personal communication.). However, in some communities, the levels of exemptors may be as high as 5%. In 1995, 84% of California schools had fewer than 1% of students with exemptions, but 4% of schools had 5% or more with exemptions (NA Smith, Immunization Program, California Department of Public Health, personal communication).

Thirteen outbreaks of measles were identified during 1985–1994 in religious groups opposing vaccination. These outbreaks resulted in more than 1200 cases and 9 deaths. Outbreaks of polio (in the 1970s), pertussis, and rubella have been documented among Amish groups.37 Salmon et al.38 found that persons with religious or philosophic exemptions were 35 times more likely to contract measles than were vaccinated persons during 1985–1992. They also found that persons living in communities with high concentrations of exemptors were themselves at increased risk for measles because of increased risk for exposure.

Rota et al.39 studied the processes required to obtain religious and philosophic exemptions to school vaccination laws and found an inverse correlation between the complexity of the exemption process and the proportion of exemptions filed. None of 19 states with the highest level of complexity in gaining exemptions had more than 1% of students exempted compared with 5 of 15 states with the simplest procedure. In these latter states, less effort was required to claim a nonmedical exemption than to fulfill the vaccination requirement.

Is There a Constitutional Right to a Religious Exemption from Mandatory Vaccination?

Challenges to mandatory vaccination laws based on religion or philosophic belief have led various courts to hold that no constitutional right exists to either religious or philosophic exemptions.

First Amendment (f) free exercise clause

Freedom to believe in a religion is absolute under the First Amendment. However, freedom to act in accordance with one’s religious beliefs “remains subject to regulation for the protection of society.”40 The U.S. Supreme Court in the 1963 case of Sherbert v. Verner41 established a balancing test for determining whether a regulation violated a person’s First Amendment right to free exercise of religion. The test, which prevailed until 1990, required the government to justify any substantial burden on religiously motivated conduct by a compelling government interest and by means narrowly tailored to achieve that interest (374 U.S. at 406–8, 83 S.Ct. at 1795–6).

Notwithstanding the state’s power as parens patriae, instances occur in which
a parent’s claim of religious freedom under the Free Exercise Clause will prevail,
as in Wisconsin v. Yoder.42 Yoder involved a challenge by Amish parents of a
Wisconsin law that required formal education of children to age 16 years. The
parents asserted that formal schooling beyond the eighth grade would gravely
endanger the free exercise of their religion because of their belief that the values
taught in higher education, including the exposure to worldly influences, are in
marked variance with Amish values and the Amish way of life. While acknowledging the state’s interest in universal education, the U.S. Supreme Court, in
applying the Sherbert compelling interest test, rejected Wisconsin’s argument
of a compelling state interest in requiring formal education of the Amish beyond
eighth grade given the strong religious interference of such a requirement and
the fact that the Amish provided adequate alternative informal vocational education. The Court in Yoder articulated its application of the compelling interest
test as follows. “[W]here fundamental claims of religious freedom are at stake,”
the Court will not accept a state’s “sweeping claim” that its interest in compulsory education is compelling; “despite its admitted validity in the generality of
cases, we must searchingly examine the interests that the State seeks to promote
. . . and the impediment to those objectives that would flow from recognizing
the claimed Amish exemption” (406 U.S. at 221, 92 S.Ct. at 1536).

Little recent case law directly addresses the existence of a First Amendment
free exercise right to a religious exemption from mandatory vaccination because
48 states have provided by statute for religious exemptions to school vaccination
laws.29 However, dicta in both Sherbert43 and Yoder44 referring to the Jacobson
and Prince decisions clearly indicate that on both parens patriae and police
power grounds the U.S. Supreme Court sees a compelling state interest in mandating vaccination of children because of the health threat to the community
and to the children themselves. With little practical alternative to vaccination to
avoid or be a disease risk (e.g., inability to avoid contact with other persons,
except for those totally isolated from society), mandatory vaccination of all
school children should also meet the “narrowly tailored” criterion of Sherbert.

In addition, in a case that predates the Yoder decision and enactment of a statutory religious exemption by Arkansas, the Arkansas Supreme Court in Wright v. DeWitt School District45 held that no First Amendment right existed to a religious exemption given the state’s compelling interest in mandating vaccination under its police power to protect the public health.g (238 Ark. at 913, 385 S.W.2d at 648). Significantly, the U.S. Supreme Court in Yoder referenced the Wright decision in dicta regarding cases in which the health of the child or public health are at issue, with the implication that a vaccination mandate providing no religious exemption would meet the compelling state interest test (406 U.S. at 230, 92 S.Ct. at 1540–1).

Whether a vaccination law that does not provide for religious exemptions
would meet the compelling state interest test is essentially moot now because
of a U.S. Supreme Court ruling that significantly lowers the bar for states to
prevail. In its 1990 decision in Employment Div., Dept. of Human Resources of
Oregon v. Smith,46 the Supreme Court rejected the compelling interest test and
established a new standard that holds that “the right of free exercise does not
relieve an individual of the obligation to comply with a ‘valid and neutral law
of general applicability on the ground that the law proscribes (or prescribes)
conduct that his religion prescribes (or proscribes)’ ” (494 U.S. at 879, 110 S.Ct.
at 1600 [quoting United States v. Lee, 455 U.S. 252, 263, n. 3, 102 S.Ct. 1051,
1058, n. 3 (1982)]).

Congress attempted to legislatively override the ruling in Smith by enacting
the Religious Freedom Restoration Act of 1993 (RFRA), which reestablished
the compelling interest test as the standard for considering the constitutionality
of free exercise claims.47 However, the U.S. Supreme Court in City of Boerne
v. Flores48 struck down RFRA, holding that Congress had exceeded its constitutional authority in implementing the statute (521 U.S. at 510–37, 117 S.Ct. at
2160–72). Thus, the Smith standard is the current law. Whether judged under
the neutral law of general applicability test of Smith or the compelling interest
test of Sherbert, it is reasonable to conclude that there is no First Amendment
free exercise right to an exemption from mandatory vaccination requirements.

Is a Statutory Religious Exemption Constitutional?

With no First Amendment free exercise right to a religious exemption, the next
question is whether the states have the discretion to allow such exemptions by
statute. The court decisions are mixed. The Establishment Clauseh of the First
Amendment establishes the constitutional limits within which a state may accommodate a religious exemption to a law of general application, including
whether such an exemption is allowed and how inclusively the exemption must
be defined. As noted above, 48 states have provided by statute for religious
exemptions to school vaccination laws.29

In Brown v. Stone,49 the Mississippi Supreme Court struck down the religious
exemption that appeared in the Mississippi school vaccination statute, holding that
the statutory religious exemption violated the Equal Protection Clause of the Fourteenth Amendment because it would “require the great body of school children
to be vaccinated and at the same time expose them to the hazard of associating
in school with children exempted under the religious exemption who had not been
immunized” (378 So.2d at 223). Thus, the Jacobson argument comes full circle.
The fact that no vaccine confers immunity on all vaccinees illustrates the point
that even persons who comply with vaccination statutes can be placed at increased
risk by exposure to individuals never vaccinated because of exemptions.

First amendment—establishment clause

Most challenges to religious-based vaccination exemptions have been decided
by the courts on establishment grounds and concern the inclusiveness of such
exemptions rather than their existence. The U.S. Supreme Court in Lemon v.
Kurtzman,50 a case involving state supplementation of parochial school salaries,
defined a three-pronged test for determining whether a state religious accommodation complies with the Establishment Clause: “First, the statute must have
a secular legislative purpose; second, its principal or primary effect must be one
that neither advances nor inhibits religion; finally, the statute must not foster
‘an excessive government entanglement with religion’ ” (403 U.S. at 612–3, 91
S.Ct. at 2111 [citation omitted] [quoting Walz v. Tax Commission, 397 U.S. 664,
674, 90 S.Ct. 1409, 1414 (1970)]).

Scope of statutory exemptions—sincerely held religious belief

In Sherr v. Northport-East Northport Union Free School District,51 the plaintiffs
had been denied an exemption under the state’s religious exemption statute by
the school district because, although they claimed religious opposition to vaccination, they were not “bona fide members of a recognized religious organization” whose teachings oppose vaccination, as required by New York law (672
F.Supp. at 84 [quoting subsection 9 of N.Y. Pub. Health L. § 2164]). The U.S.
District Court for the Eastern District of New York found that New York’s
limitation of the religious exemption violated both the Establishment and Free
Exercise clauses of the First Amendment.i

The court found that this limitation violated the Establishment Clause by
running afoul of at least the last two prongs of the Lemon testj
: (1) by inhibiting
the religious practices of individuals who oppose vaccination of their children
on religious grounds but are not members of a religious organization recognized
by the state and (2) by restricting the exemption to “recognized religious organizations” requires that the government involve itself in religious matters to
an inordinate degree through such government approval (672 F.Supp. at 89–90).
In addition, the court held that the limiting language violated the Free Exercise
Clause because no compelling societal interest existed to justify the burden
placed on the free religious exercise of “certain individuals while other persons
remain free to avoid subjecting their children to a religiously objectionable medical technique because they may belong to a particular religious organization to
which the state has given a stamp of approval” (672 F.Supp. at 90–1). There
“surely exist less restrictive alternative means of achieving the state’s aims than
the blatantly discriminatory restriction . . . the state has devised” (672 F.Supp.
at 91). Striking down New York’s limitation, the court found that “sincerely
held religious beliefs” in opposition to vaccination, whether or not as part of a
recognized religion, should suffice (672 F.Supp. at 98).

Do Statutory Religious Exemptions Encompass Philosophic Opposition?

Strength of convictions aside, defining “religious” belief can be difficult, and understanding its implications for philosophic exemptions that a state may or may
not wish to voluntarily confer is a challenge. As the Supreme Court noted in
Yoder: “to have the protection of the Religion Clauses, the claims must be rooted
in religious belief” (406 U.S. at 215, 92 S.Ct. at 1533). Decisions by the U.S.
Supreme Court in two conscientious objector cases indicate that a bright line
may not always exist between the religious and the philosophic and that at least
some amount of philosophic opposition to vaccination may rise to the level of
being religious and therefore incorporated into a voluntarily conferred religious
exemption, regardless of whether the state explicitly provides for a philosophic
exemption.k In United States v. Seeger52 and Welsh v. United States,53 the Court
interpreted “religious,” as it appeared in a federal statutory religious-based conscientious objector exemption from military conscription, very expansively to
extend beyond traditional religious beliefs. Seeger defined the test as “[a] sincere
and meaningful belief which occupies in the life of its possessor a place parallel
to that filled by the God of those admittedly qualifying for the exemption” (380
U.S. at 176, 85 S.Ct. at 859). The Court elaborated in Welsh: “to be ‘religious’
. . . this opposition... [must] stem from... moral, ethical, or religious beliefs
about what is right and wrong and that these beliefs be held with the strength of
traditional religious convictions” (398 U.S. at 340, 90 S.Ct. at 1796).

However, the Welsh Court clarified that “moral, ethical, or religious principles” do not incorporate “considerations of policy, pragmatism, or expediency”
(398 U.S. at 342–3, 90 S.Ct. at 1798). Yoder provides further illumination: “A
way of life, however virtuous and admirable, may not be interposed as a barrier
to reasonable state regulation of education if it is based on purely secular considerations.... [T]he very concept of ordered liberty precludes allowing every
person to make his own standards on matters of conduct in which the society
as a whole has important interests. Thus, if the Amish asserted their claims
because of their subjective evaluation and rejection of the contemporary secular
values accepted by the majority, much as Thoreau rejected the social values of
his time and isolated himself at Walden Pond, their claims would not rest on a
religious basis. Thoreau’s choice was philosophical and personal rather than
religious, and such belief does not rise to the demands of the Religion Clauses”
(406 U.S. at 215–6, 92 S.Ct. at 1533). Thus, the court in Mason v. General
Brown Central School District54 rejected fear of the possible side effects from
vaccination, although based on strong convictions, as rising to the level of religious beliefs because of evidence that the plaintiff’s beliefs were “simply an
embodiment of secular chiropractic ethics” (851 F.2d at 51–2). Mason, and
similar decisions, indicate that the expansive religious interpretation of Seeger
and Welsh should not be read too broadly.

Impact of Evolving Privacy Rights

Finally, the general concept of a liberty interest in bodily integrity was first
articulated by then-Judge, later Justice, Cardozo in Schloendorff v. Society of
New York Hospital: “Every human being of adult years and sound mind has a
right to determine what shall be done with his own body” regarding medical
needs.55 Recognition by the courts in recent years of a liberty right, or right to
privacy, in medical decision making emanating from the due process clause of
the Fourteenth Amendment and noted most prominently by the U.S. Supreme
Court in its 1973 decision Roe v. Wade56 might be used as the basis of a claimed
privacy right by a college student subject to mandatory vaccination. However,
the Court in Roe, referencing Jacobson, noted that the medical privacy right is
not unlimited and must be balanced against important state interests in regulation
(410 U.S. at 154, 193 S.Ct. at 727). More recently, in dicta in the 1990 “right
to die” case of Cruzan v. Director, Missouri Dept. of Health,57 the U.S. Supreme
Court again acknowledged the viability of the Jacobson holding, leading to the
conclusion that, as long as the public health need for widespread vaccination
exists, the courts will not recognize a privacy right to refuse state-mandated
vaccination and will uphold the police power of states to mandate vaccination.

PRACTICE CONSIDERATIONS AND EMERGING ISSUES

As new vaccines have been introduced and recommended for universal use in
infants and children, states have responded by expanding the scope of their
vaccination laws. Vaccination laws were first enacted to control epidemic diseases. Now they are also used to increase coverage with vaccines that are
deemed important to protect the public’s health even in the absence of epidemics. This practice is increasingly becoming subject to challenge, particularly with
vaccines such as the varicella vaccine. Varicella is typically a mild disease in
children, although nationwide it accounts for more than 50 deaths each year.
Some parents have argued that no compelling state interest exists in preventing
this disease. With hepatitis B vaccine, the argument has been that most hepatitis
B occurs in adults whose sexual or drug-using behavior puts them at risk and
that school children should not be forced to be vaccinated against a disease that
often results from voluntary behavior of adults.

Publicity about adverse events alleged to be caused by vaccine fuels controversy about the wisdom or necessity of requiring vaccination, particularly in the
absence of visible threat from disease. In the 1970s, concern about the possibility
of pertussis vaccine causing sudden infant death syndrome or infantile spasms
led to debate about pertussis vaccination requirements, even though studies
showed that the vaccine caused neither event.58 More recently, concern about
the possibility that measles-mumps-rubella vaccine (MMR) might cause autism
has led to congressional hearings and challenges to requirements for this vaccine.59 Persons opposed to vaccination have extensively used the Internet to
communicate their beliefs.

Of course, the appearance of new adverse events caused by vaccines further
feeds the controversy. The occurrence of intestinal intussusception after administration of the recently licensed rotavirus vaccine led to withdrawal of the vaccine and lent some support to the arguments of those opposed to vaccination.60

CONCLUSION

School vaccination requirements have been a key factor in the prevention and
control of vaccine-preventable diseases in the United States. Their constitutional
basis rests in the police power of the state as well as in the parens patriae
doctrine. No constitutional right exists to either a religious or philosophic exemption to these requirements, although most states allow religious exemptions
and several allow philosophic exemptions. The courts have generally upheld
these exemptions. Most litigation regarding exemptions has focused on the scope
of the exemption, with courts holding that religious exemptions may not be
limited to members of organized religions but rather must allow all who have
sincerely held religious beliefs in opposition to vaccination to qualify. “Religious” may be defined broadly enough to incorporate some amount of philosophic opposition but should not be interpreted to bring purely secular-based
“philosophic” opposition to vaccination within the meaning of religion.

With the increasing numbers of vaccines being introduced and the generally
low level of visible threat from disease, continued challenges to school vaccination requirements are expected. School vaccination laws continue to play a
central role in avoiding “the tragedy of the commons” by preventing disease
through high vaccination coverage. These laws can be expected to be upheld by
the courts as long as the balance of protecting the public health is achieved by
mandating such requirements.

Notes

a Compulsory vaccination is not beyond the police power without arbitrariness or extreme injustice under particular facts. (See note b regarding medical-based exemption).
In Jacobson, the Court—in addition to holding that providing for compulsory vaccination is within the police power of a state—also held that such authority may be
delegated to a local body (197 U.S. at 25, 25 S.Ct. at 361).
b In dicta, the Court in Jacobson indicated, however, that there would be a liberty right
to an exemption based on known medical contraindication “to protect the health and
life of the individual concerned” (197 U.S. at 39, 25 S.Ct. at 366). (Dicta is discussion
in a court decision that addresses an issue outside the direct facts presented by the
case and therefore outside the court’s holding and thus is of no precedential value in
directing future court decisions.)
c See also Brown v. Stone (378 So. 2d 218, 222–3) (Miss. 1979), cert. denied 449
U.S. 887 (1980) for discussion regarding the logical nexus between mandatory vaccination and school attendance: “overriding and compelling public interest... [in] exclusion of a child until such immunization has been effected, not only as a protection
of that child but as a protection of the large number of other children comprising the
school community and with whom he will be daily in close contact in the school
room.”
d See also In re: Christine M., 157 Misc.2d 4, 595 N.Y.S.2d 606 (N.Y. Fam. Ct. 1992)
in which the court, citing Prince, held that a father’s knowing failure to have his child
vaccinated against measles in the midst of a measles outbreak, and not qualifying for
a statutory religious exemption, caused the child to be a “neglected child” under state
law. However, the court declined to order vaccination because the measles outbreak
had ended by then and the child was not yet old enough to be subject to the school
attendance law.
e But see discussion regarding holding in Sherr striking down state religious exemption
requirement that an individual be a “bona fide member of a recognized religious
organization.”
f The First Amendment to the U.S. Constitution states in pertinent part, “Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise
thereof. . . .” The Free Exercise and Establishment Clauses have been held applicable
to the States through the Due Process Clause of the Fourteenth Amendment.40
g See also Cude v. State, 237 Ark. 927, 377 S.W.2d 816 (Ark. 1964) (upholding ruling
of neglect and appointment of temporary guardian to consent to vaccination of children
despite parents’ good faith religious beliefs in opposition).
h See note f, above.
i See also Davis v. State, 294 Md. 379, 451 A.2d 107 (Md. 1982), which held that
limiting religious exemption to children whose parents were “members” (as statute
provided) or “adherents” (as health department regulation further attempted to narrow
the qualification) of a “recognized church or religious denomination” opposing vaccination violated the Establishment Clause. On the basis of rules of statutory construction in Maryland, the court severed the offending religious exemption from the statute
and upheld the conviction of Davis under the remaining statute that compelled vaccination (294 Md. at 382–5, 451 A.2d at 114–5). Rules of statutory construction vary
so that in the Sherr case the court struck down the limiting “bona fide members of a
recognized religious organization” language but otherwise upheld the religious exemption. In addition, the court enjoined enforcement of the “bona fide” language as
to one of the two sets of plaintiffs, who otherwise qualified, and further enjoined the
state from enforcing the offending language in the future (672 F.Supp. at 97–9).
j The court in Sherr, having noted the constitutional infirmity of the “bona fide” limitation under the other two prongs of Lemon, did not resolve whether the “bona fide”
portion of the religious exemption possessed a secular purpose as required under the
first prong. However, in dicta, the court noted that the legislature may have had a
number of secular purposes for adopting such language, including “as a guard against
claims of exemption on the basis of personal moral scruples or unsupported fear of
vaccinations, as a means of allowing certain exemptions without risking lessened effectiveness of the state’s inoculation program due to the granting of a large number
of exemptions, or perhaps because of the difficulties inherent in devising a legally
workable definition of religion” (672 F.Supp. at 89).
k Fifteen states provide a separate philosophic exemption to school attendance vacci­nation laws, in addition to religious exemptions29 (RH Snyder, NIP, CDC, personal
communication).

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