Over the past several months, the Jewish community’s role in contributing to the measles outbreak has garnered much attention and concern. The fact that a small segment of the Orthodox Jewish community has opted to put their own children and the children of others at risk by not vaccinating is shameful, and a textbook example of a Chillul Hashem (desecration of God’s name). But beyond deploring the situation, what steps should the Jewish community take to address the problem?
The response depends upon the reasons for non-vaccination. Those who do not vaccinate their children because they believe the misinformation and distortions peddled by the anti-vaxxer movement, as well as parents whose failure to vaccinate their children is due to oversight or neglect, education is the appropriate response. However, for parents whose resistance to vaccination is based upon religious principles, the Jewish community should mobilize to promote legislation that removes religious exemptions to compulsory vaccinations.
Last Thursday, New York – to its credit — became one of only six states that prohibit exemptions from vaccination on religious grounds. The 44 states which permit such exemptions include Maryland, where I reside. Section 7-403 of the Maryland Code, Education Article, requires the State Department of Health and Mental Hygiene to adopt rules and regulations regarding immunizations required of children entering schools, but with the proviso that absent declaration of an emergency or an epidemic of disease, “a child whose parent or guardian objects to immunization on the ground that it conflicts with the parent’s or guardian’s bona fide religious beliefs and practices may not be required to present a physician’s certification of immunization in order to be admitted to school.”
The process for a Maryland parent to obtain a religious exemption to vaccination is absurdly simple. A parent need only complete a one page form stating that the parent certifies that the administration of the vaccine “is contrary to our religious beliefs.” Since the parent is not required to identify the religion that the family practices, or to provide any support for the claim that the religion prohibits vaccinations, the process is ripe for abuse. But even if a parent’s claim that vaccination violated the family’s religious beliefs is sincere and legitimate, should that override the public interest in preventing the spread of disease?
According to Agudath Israel of America, the answer to this question is yes. In a statement issued on June 14, 2019, Agudath Israel criticized New York’s elimination of the religious exemption for vaccinations, stating, “the First Amendment, and the sacrosanct constitutional principle of governmental aversion toward impinging on the free exercise of religion, is a cornerstone of our country. It is a principle that our constituents routinely rely upon to function as Orthodox Jews in America. Erosion of that – irrespective of whether it affects our immediate religious practice – sets a dangerous precedent.”
The claim of Agudath Israel that elimination of the religious exemption for vaccinations violates the First Amendment is incorrect. The U.S. Supreme Court has repeatedly affirmed the authority of states to require and regulate immunizations for children, and has denied claims that such compulsory vaccination laws violate the due process clause, the equal protection clause, and the free exercise of religion clause. In Prince v. Massachusetts (1944), the Supreme Court held that 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.”
Similar conclusions have been reached by Federal Courts of Appeals; in Workman v. Mingo County Board of Education (2011), the Fourth Circuit rejected a claim that West Virginia’s decision to eliminate any religious exemption to mandatory immunization statutes violated the free exercise of religion clause, citing the “compelling interest of society in fighting the spread of contagious diseases through mandatory inoculation programs.”
The assertion of Agudath Israel that in order for Orthodox Jews to “function” in America,” it is essential that the right to free exercise of religion clause be enforced without any exceptions whatsoever, is both false and pernicious. Restricting practices which, under the false guise of religion, endanger the public welfare not only does not hinder the practice of Orthodox Judaism, but is fully consistent with Judaism’s highest moral principles. By issuing a statement which suggests otherwise, the Agudath Israel contributes to a false impression of Jews and Judaism which is detrimental to our community for both obvious and not-so-obvious reasons. For an example of the latter, if it is legitimate for Agudath Israel to claim that a strict reading of the free exercise clause bars mandatory vaccinations, why is it not legitimate for public school advocates to claim that a strict reading of the establishment clause bars state aid to private schools?
According to the CDC, from January 1 to June 13, 2019, 1,044 individual cases of measles have been confirmed in 28 states. This is the greatest number of cases reported in the U.S. since 1992, and since measles was declared eliminated in 2000. In order to contain the outbreak, and prevent a recurrence, the Jewish community should be in the forefront of the effort to eliminate religious exemptions to mandatory vaccination laws. If doing so saves only one life, then we will have the satisfaction of having saved an entire world.
Jay Bernstein writes from Baltimore, where he practices law and is active in community affairs. For 15 years, he hosted Shalom USA, Baltimore’s weekly Jewish talk radio program.
