Federal appeals court OKs CT’s denial of religious exemptions for student vaccinations

A federal appeals court has largely upheld a new Connecticut law that prevents parents from obtaining religious exemptions for their school age children from vaccinations for communicable diseases.

A three judge panel of the U.S. Court of Appeals for the Second Circuit upheld a sharply contested, pandemic-era law that effectively repealed the state’s half century old religious vaccine exemption for public and private school students.

The decision – with a narrowly focused dissent – affirms U.S. District Judge Janet Bond Arterton’s dismissal a year and a half ago of a constitutional challenge to the new law by two religious rights advocacy groups and the parents of three school-aged children.

The dissent came from circuit court Judge Joseph F. Bianco who criticized Arterton for dismissing the suit so early in the litigation that those challenging the law were denied the opportunity to fully develop the argument that it conflicts the constitutional guarantee of free religious exercise.

Bianco suggested some aspects of the law may unfairly target the religious, such as a provision that grants vaccine exemptions for medical, but not religious reasons, and another that allows children who had obtained religious exemptions prior to enactment of the 2021 law to be “grandfathered” through completion of their educations.

“Although Connecticut asserts that this differing treatment between religious and secular exemptions was prompted by a substantial increase over recent years in the number of religious exemptions and an acute risk of an outbreak of disease, Connecticut fails to explain how forty-four states and the District of Columbia have maintained a religious exemption for mandatory student vaccinations without jeopardizing public health and safety,” Bianco wrote.

The appeals court also reversed Arterton on a narrowly focused issue: How the law defines special needs or special education students. The plaintiffs challenging the law contended it failed to make provisions for the legally-required education of special needs students whose parents decide against vaccinating them.

The appeals court returned the special needs question to Arterton for further review, something a lawyer involved in the litigation said is unlikely to change the outcome.

“This decision is a full and resounding affirmation of the constitutionality and legality of Connecticut’s vaccine requirements,” state Attorney General William Tong said. “Vaccines save lives—this is a fact beyond dispute. The legislature acted responsibly and well within its authority to protect the health of Connecticut families and stop the spread of preventable disease. We will continue to vigorously defend our state’s strong and necessary public health laws.”

Norm Pattis, whose client We the Patriots USA is one of the non-profit groups challenging the law, said the group will ask the full court of appeals to rehear the case and, if that fails, petition the U.S. Supreme Court.

“Connecticut’s decision to eliminate a religious exemption while permitting a medical exemption to the vaccine requirements undervalues the role of religious belief in American life and is irrational,” Pattis said. “As the good book says: ‘What does it profit a man to gain the whole world but lose his soul?’.”

Pattis said the appeals court wrongly based its decision on a century old case in Massachusetts in which the U.S. Supreme Court allowed the state to eliminate religion-based vaccine exemptions without weighing elimination against the constitutional guarantee of freedom of religion.

“We will ask the Second Circuit for reargument and an en banc hearing,” Pattis said. “We think the dissent got it right. The case raises grave first amendment issues about the role of religion in American life.”

The appeals court said it has been made clear by the Supreme Court and its own rulings that Connecticut and other states have the authority to enact a mandatory vaccination law for school age children. But the dissent said it is less clear whether a state can repeal an existing religious exemption, while permitting exemptions for other reasons.

The challenged state law requires immunizations for all children before enrolling in school. Before 2021, students could apply for medical or religious exemptions to that requirement. The new law eliminated the religious exemption, while grandfathering students in kindergarten through grade 12 who had already received such exemptions.

The General Assembly eliminated the religious exemption for school children at the height of the coronavirus pandemic and after lengthy debate and widespread protest. Few issues have been as contentious and polarizing as the effort to rescind the religious exemption, which had been part of state law since 1959. There were mass protests outside the Capitol as the legislation was debated.

Gov. Ned Lamont signed the law in April 2021.

Arterton dismissed the suit – against various state agencies and three school districts – in its entirety early in the litigation.

She said the state agencies, as arms of the state, are immune from such suits, and the two organizations suing them lacked standing to sue because they could not show how they are specifically harmed by the law.

The claims by the parents failed, Arterton said, because, among other things, the Supreme Court has upheld mandatory vaccination laws in public health emergencies and the new law “is constitutional because it is a neutral law of general applicability which is rationally related to a legitimate state purpose.”

The parents — a Protestant, a Catholic and a Muslim — argued that vaccines contain cell lines derived from aborted fetal cells and that injecting themselves and their children with such cells would amount to what one parent called “participation in … an act of intentional, premeditated murder.” They also claimed vaccines contain animal derivatives, including pork. One parent said she was forbidden by religion from ingesting pork and another said she is raising her children as vegans for religious reasons.

Civic and religious group’s joined Tong’s office in its district court defense of the law as friends of the court. They described themselves in a filing with the court as believing that “the right to exercise religion freely is precious, but that it was never intended to override protections for people’s safety and health.” They argued that childhood vaccinations have prevented more than 100 million cases of severe disease, that all 50 states impose vaccination requirements on children attending schools, and that recent anti-vaccination sentiment “has led to resurgences of dangerous diseases such as measles, mumps, and pertussis.”