A sharp debate over religious exemptions to school vaccine mandates is intensifying across the nation, just as vaccination rates of schoolchildren are declining and childhood diseases such as measles are making a comeback.
In West Virginia, which has never allowed religious exemptions under state law, a monthslong policy and legal battle over the governor’s efforts to require them by executive order is headed to the state’s highest court.
Meanwhile, the U.S. Department of Health and Human Services under Secretary Robert F. Kennedy Jr., a longtime vaccine skeptic, has backed religious exemptions in West Virginia and warned other states and local jurisdictions to accept them or else face a loss of federal funding.
And this fall, the U.S. Supreme Court will consider whether to take up a case from Amish parents and schools in New York who are challenging that state’s 2019 elimination of religious exemptions. A decision to grant review in the case will by itself raise the stakes, while any definitive ruling could settle the question for the nation.
“There’s definitely a lot of pressure building on this issue,” said Madison Harden-Stein, an assistant research professor who studies state health policy at Georgetown University’s McCourt School of Public Policy. “It is a bit concerning because the decision of whether to have a religious exemption has always been a state decision.”
Five states have refused exemptions in recent years
All 50 states and the District of Columbia require vaccination of children to enroll in school, although Florida officials recently announced plans to roll back its mandates.
Every state allows medical exemptions for those who face health risks, while the vast majority also offer some form of religious or personal belief exemptions.
“Religious exemptions vary a lot across the states,” said Dorit Reiss, a law professor at the University of California, San Francisco, who has written widely on the issue and is skeptical of religious exemptions. “Some states have a ‘check the box’ exemption, while in some states you have to renew the exemption every year, and you have to write a letter, or you have to have the exemption notarized. There are procedures to make it difficult.”
Vaccine mandates aim to protect both individual students and achieve herd immunity, which protects those who aren’t immunized for medical or other reasons.
“The evidence is, the easier it is to get exemptions, that means more exemptions and more outbreaks,” said Reiss.
NBC News, in a six-month investigation in collaboration with infectious disease researchers at Stanford University, reported that since 2019, 77% of counties and jurisdictions in the United States have reported notable declines in childhood vaccination rates, while vaccine exemption rates for schoolchildren are rising.
Reported measles cases have spiked sharply this year, according to the U.S. Centers for Disease Control and Prevention, with some 1,500 nationwide, compared with 285 last year and as few as 13 in 2020, just after the last spike of 1,274 in 2019.
California, Connecticut, Maine, and New York have removed their religious exemptions in recent years amid outbreaks of diseases, including measles. West Virginia adopted its first compulsory vaccine law in 1905, and it has steadfastly rejected bills to add a religious exemption over the years before the governor’s executive order this year.
Though vaccine advocates say some families invoke religious or other personal belief exemptions as an easy option to avoid vaccine mandates, many parents seek exemptions for their children based on sincerely held religious beliefs.
Joseph Miller, an Amish father who is the lead plaintiff in the challenge to New York state’s vaccine requirements, said in a court declaration, “Our Almighty God wants us to fully put our faith [and] trust in Him. Which is in conflict to put our trust in vaccines. … Forcing us to violate our religious beliefs will create a conflict which has no solution.”
The First Liberty Institute, a Plano, Texas-based conservative legal organization representing the Amish parents and schools challenging New York’s system, says in a Supreme Court brief that state lawmakers denigrated religious beliefs when they removed the exemptions in 2019.
The Amish have a “sincere and abiding” objection to vaccinations as part of their fundamental belief “that salvation requires life in a church community separate and apart from the world and worldly influence,” First Liberty said.
“Today in New York, if a vaccine would harm your lungs, you may be exempted,” the group says. “But if it would harm your soul, you may not.”
West Virginia gets support from the Trump administration
Nowhere has the debate over religious exemptions been as intense recently as in West Virginia.
The state has never offered a non-medical exemption to school vaccinations by law, and its state board of education has remained committed to the policy.
Enter Gov. Patrick Morrisey, a Republican, who issued an executive order one day after taking office in January to develop policies supportive of religious exemptions.
“Students will not be denied access to public education because of their religious objections to compulsory vaccination,” Morrisey said in May when he released guidance spelling out how parents may obtain an exemption.
His executive order sparked a lawsuit backed by the American Civil Liberties Union, while the state education board’s refusal to accept religious exemptions prompted separate suits from parents seeking to avoid the vaccine mandate for their children.
The West Virginia Supreme Court agreed this month to hear the case involving the state board, though the court declined to put the case on a fast track. The state health department has issued more than 400 exemptions to families who sought them as the legal clash plays out.
In August, the federal Health and Human Services Department sent a letter to West Virginia health agencies participating in the federally funded Vaccines for Children program that sided in favor of religious exemptions.
The letter cited the state’s 2023 Equal Protection for Religion Act, which is meant to prevent any government burden on an individual’s religion unless there is a compelling interest.
“West Virginia is a participant in the [Vaccines for Children Program] and receives $1.37 billion from the Centers for Medicare & Medicaid Services each year as the federal Medicaid contribution,” said the letter signed by Paula M. Stannard, the head of HHS’s office for civil rights. “Therefore, West Virginia is obligated to ensure that its VCP providers comply with applicable state laws like EPRA, which requires recognition of religious exemptions from West Virginia’s Compulsory Vaccination Law.”
On Sept. 4, HHS went a step further by issuing a “Dear Colleague” letter to vaccine program participants nationwide. The letter asserts that states with religious freedom statutes similar to West Virginia’s must offer religious exemptions to their vaccine mandates.
“Today’s letter makes clear that providers must respect state laws protecting religious and conscience-based exemptions to vaccine mandates,” Kennedy, the HHS secretary, said in a news release when the letter went out. “States have the authority to balance public health goals with individual freedom, and honoring those decisions builds trust.”
Advocates for vaccine mandates without religious exemptions were alarmed by the HHS letters.
“It’s definitely concerning, especially given the other vaccine rhetoric we’ve been getting from HHS,” said Harden-Stein of Georgetown.
“It’s a massive overreach of federal power,” said Reiss of UC-San Francisco. “School immunization mandates have always been a state issue. The federal government has never dictated to states what to do. This letter is not just threatening loss of federal funds over school mandates, it is implying strongly that the federal government is going to re-interpret state laws in ways the state doesn’t agree with. That’s a massive overstep.”
Reiss said she believes the nationwide letter is essentially targeting Connecticut, which she says is the only state among those that don’t allow religious exemptions that also has a state religious freedom statute of the type highlighted in the nationwide HHS letter.
Amish schools in New York face thousands of dollars in sanctions
Connecticut ended its longstanding religious exemptions for its vaccine mandate in 2021, after a nationwide measles outbreak. The state allowed the children who had religious exemptions to keep them until they finished their education.
A legal challenge to the state’s move based on the First Amendment’s free exercise of religion clause failed in federal district and appeals courts, and the Supreme Court last year declined to take up the case.
In 2011, the Supreme Court declined to hear a challenge to West Virginia’s lack of a religious exemption.
But now the New York state case brought by the Amish parents and families gives the court a new opportunity to consider the issue.
The justices will likely decide sometime this fall whether to take up the appeal in Miller v. McDonald, which asks whether the state’s refusal to provide religious exemptions while offering medical ones violates the free exercise clause, at least as applied to the Amish litigants involved in the case.
New York’s state health commissioner in 2022 upheld financial sanctions, ranging from $20,000 to $52,000, against three Amish schools for violating the law that removed religious exemptions. The commissioner said in an order that the state health department “does not doubt the genuineness of the [schools’] religious assertions. However, to impose no penalty would be contrary to public policy, the department’s mission, and the clear intent of the state legislature.”
The schools and several parents sued, but they lost in the federal district court and in the U.S. Court of Appeals for the 2nd Circuit, in New York City.
The 2nd Circuit upheld the law under a 1990 Supreme Court decision, Employment Division, Department of Human Resources of Oregon v. Smith. In that decision, the high court cast aside the highest test, known as strict scrutiny, for evaluating government action that infringed the free exercise of religion and said such actions need only be justified under an easier-to-meet rational-basis test.
In their Supreme Court appeal, the Amish challengers ask the high court to clarify whether the free exercise clause demands strict scrutiny of vaccine laws that allow secular exemptions but disallow religious ones. And, if necessary, the court should overrule Smith, the challengers say.
“This merits the court’s attention because not only is the issue exceptionally important, but for the reasons we spell out in our petition, we think there is confusion over the proper application of Employment Division v. Smith in the current landscape,” said Kyle D. Hawkins, an Austin, Texas, lawyer representing the challengers along with First Liberty Institute. “We think this is an issue of obvious nationwide importance.”
New York state officials have not yet filed their response to the appeal, but the case arrives at a time when the conservative majority on the Supreme Court has been generally receptive to free exercise claims. A majority of justices have also suggested that Smith should be reconsidered, though there is debate about what test might replace it.
The New York challengers also stress the relevance of Wisconsin v. Yoder, the 1972 case in which the high court held that the Old Order Amish could not be compelled to send children to school beyond 8th grade.
The 2nd Circuit, in the New York vaccine case, suggested Yoder was a limited case and the hardship posed on the Amish schools by the state’s lack of a religious exemption was “not equivalent to the existential threat the Amish faced in Yoder.”
That appellate decision came March 3, months before the Supreme Court’s June 27 in Mahmoud v. Taylor, which held that parents with religious objections must be allowed to opt their children out of LGBTQ+ lessons. In Mahmoud, the court rejected the idea that Yoder was limited and held that Smith does not apply if the religious “burden imposed is of the same character as that imposed in Yoder.”
The New York challengers, in their brief, seize on that and say, “As in Yoder, vaccination is ‘in marked variance with Amish values and the Amish way of life.’ … And as in Yoder, forcing Amish parents to vaccinate their children would ‘endanger their own salvation and that of their children.’”
