Separation of church and state? Not when it comes to public health.
As an international measles outbreak kills thousands worldwide, officials closer to home are calling for an increase in vaccinated school children.
In March, House Majority Leader Matt Ritter wrote Attorney General William Tong to ask for a formal legal opinion "regarding the constitutionality of eliminating the religious exemption for required immunizations."
This month, Tong issued an opinion that it’s legal for lawmakers to get rid of the religious exemption.
Tong’s first formal opinion as attorney general, concluded: “There is no serious or reasonable dispute as to the State’s broad authority to require and regulate immunizations for children: the law is clear that the State of Connecticut may create, eliminate or suspend the religious exemption in Section 10-204a(a) in accordance with its well-settled power to protect public health and safety."
Tong's opinion followed updated statistics from the state Department of Public Health that found 102 schools reported immunization rates for measles, mumps, and rubella that were below Connecticut's standard of 95 percent last year.
Tong said he doesn’t have an opinion as to whether the state should eliminate the religious exemption because that’s a policy decision for the legislature and the governor. Tong’s opinion focused on the constitutionality under both the federal and state Constitutions.
“Despite a diligent search, we have been unable to find a Connecticut case that has held that a religious exemption from school vaccinations was constitutionally required,” Tong wrote. “On the contrary, over 100 years ago, the Connecticut Supreme Court upheld mandatory school immunizations. Bissell v. Davison, 65 Conn. 183 (1894). More recently, a superior court case has upheld the constitutional dimensions of immunization in the context of a child custody case."
In the custody case, Tong said the court noted that "religious freedom in this country is not an absolute right" and that "the right of parents to raise their children in accord with their personal and religious beliefs must yield when the health of the child is at risk or when there is a recognized threat to public safety."
The number of Connecticut kindergarten students receiving all required measles mumps and rubella (MMR) vaccines in the 2017-2018 school year was 96.5 percent. The percentage of kindergarten students with a religious exemption last year increased by 0.2 percent compared with the previous year to 2.0 percent. The percentage of kindergarten students with a religious exemption has increased 0.6 percent since 2012-2013, according to the state.
In Fairfield County there were 245 kindergarten children granted religious exemptions from vaccines during the last school year and another 41 kindergartners granted medical exemptions. (County breakdowns of the vaccination rates for 2017-2018 are attached in a PDF below as well as here.)
Statewide details from the public health survey can be found by clicking here.
As the law is currently written, Connecticut residents can present a statement saying their children are not immunized because it would be "contrary to the religious beliefs of such a child or the parents or guardian of such child."
In recent years, there has been a rise in unvaccinated children. A Centers for Disease Control and Prevention (CDC) report released in October said that the proportion of children receiving no vaccine doses by the age of two rose from 0.9 percent among those born in 2011 to 1.3 percent among those born in 2015.
At least 44 Connecticut legislators -- 41 Republicans and three Democrats -- differed with Ritter and expressed their opinion against removing the religious exemption.
In their April 10 letter to Tong, the five state senators and 39 members of the House wrote, "We hope you will join us in our firm conviction that Connecticut should never be a state that favors certain religious beliefs to the exclusion of others."
In his March 29 letter, Ritter cited measles outbreaks in New York and elsewhere as cause for eliminating Connecticut's religious exemption. Measles also is suspected of being spread by European travel, where there was a record outbreak in 2018 as reported here by the World Health Organization.
Legislators are now seeking more input from the state Department of Public Health. DPH Commissioner Renee Coleman-Mitchell has not taken a position on whether the General Assembly should remove the religious exemption.
Coleman-Mitchell must weigh in on what statutory authority is needed to boost vaccination rates in schools, what to do about children already enrolled in school, and whether state lawmakers should wipe out the exemption or pursue other action, according to Ritter.
The 44 state legislators who challenged Ritter's interpretation of the law, wrote: “It is our firm belief that the elimination of the religious exemption would violate the First and Fourteenth Amendments of the United States Constitution, at least five provisions of Connecticut’s Constitution, and at least three Connecticut General Statutes. . . ."
"Connecticut currently has one of the highest vaccination rates in the country at 98.2 percent, far greater than the 75-86 percent required to achieve herd immunity for mumps, the 80-86 percent required for polio, and the 83-94 percent required for measles," the 44 lawmakers wrote. "The use of the religious exemption in Connecticut, therefore, poses absolutely no threat to public health or safety."
“Parents would be forced to choose between violating their sincerely held religious beliefs and gaining access to a free public education,” the 44 state legislators concluded.See Attachment