The New York State Bar Association Journal for April, 2019, carried an article titled “Who Calls the Shots?” No, it’s not about women film directors. It’s about legal disputes related to mandatory vaccinations. I am currently representing a parent involved in such a dispute.

According to the National Conference of State Legislatures, all 50 states have legislation requiring specified vaccines for students.  Although exemptions vary from state to state, all school immunization laws grant exemptions to children for medical reasons. Almost all states (including New York) grant religious exemptions for people who have religious beliefs against immunizations. Currently, 17 states (excluding New York) allow philosophical exemptions for those who object to immunizations because of personal, moral or other beliefs. 

Several of the cases featured in the Journal article are situations where parents claim religious exemption from vaccinating their children and the party on the other side is their school district. The parent submits a request for religious exemption, which must be denied or granted in writing by the principal. If the request is denied, the principal must give a reason and the parent may appeal the decision. On appeal, generally the school wins because it’s the parent who has the so-called “burden of proof,” according to the article. That is, the parent must demonstrate that the religious belief is genuine and sincere, rather than the school demonstrating that it’s not. 

However, not all the cases are between parents and schools. “For some families,” the article says, “even the parents themselves disagree on whether their children should be vaccinated.” In such a case, the stakes change. The situation is no longer a parent’s choice between vaccinating and keeping a child out of school. 

I am currently litigating a vaccination dispute between divorced parents. As far as legal research reveals, there is no case like this in New York history. My client has never had the children of his marriage vaccinated. During the marriage his spouse never cared, but now they are divorced and she cares. 

Can a judge make a parent vaccinate a child? One wouldn’t think so, but the Journal article describes a Michigan case where a mother was “jailed for a week and had her custody rights reduced for failing to comply with a court order to have her child vaccinated.” (Before you think the Michigan court too draconian, I’ll mention there were extenuating circumstances in that case: the woman had ignored previous court orders, such as changing their child’s school without her ex’s consent.) The question is delicate. If the parents disagree and the court decides, isn’t the judge actually making the decision for the parents?

The issues are heartbreakingly human, even tilting toward the philosophy of social justice. Laymen sometimes perceive the law as static and unchanging. But we know this is not true; just look at how the law is evolving on same-sex marriage or gays in the military. Now, as I write this, we are participating in the evolution of New York law on the subject of mandatory vaccination. It’s history in the making.