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To VAX or ANTI-VAX: The First Amendment and Parental Decision Making

Few issues involve an intersection between the best interests of a child and constitutional freedoms we hold dear like the determination of decision making responsibilities with respect to issues such as vaccinations.

Part of the inherent political culture in the United States is the constitutionally recognized and protected liberty interest parents have in making decisions on how to raise their children. This stems from various First Amendment rights such as the right to privacy or the freedom of religion as protected by the Establishment Clause of the First Amendment. While these rights are hallowed and protected by the Constitution, they are not absolute. Courts have a compelling state interest to intervene when the exercise of these freedoms poses a danger to a minor child in all cases, even when parents are in agreement. A recent case in Washington led to children being seized in California as a result of a vaccination dispute between parents the Department of Human Services. http://www.ksbw.com/news/central-california/santa-cruz/3-abducted-washington-children-seen-in-aptos-police-say/31115924.

These rights of personal autonomy are further eroded in situations where the family unit is no longer intact and the parties cannot agree on what is in the best interests of a child. The balancing test expands from the state comparing the constitutional interests of the parents against what may be in the best interest of the child to determine if the action is sufficiently endangering to create a compelling state interest to the court having to factor opposing parental views into the same analysis. At this point the court must weigh various factors to decide which parent has the right to make such fundamental decisions for the child while protecting the constitutional rights of both in addition to considering the best interests of the child.

One of the most polarizing issues among many parents right now is the decision of whether or not to vaccinate their children. Celebrities like Jenny McCarthy, http://www.pbs.org/wgbh/pages/frontline/vaccines/interviews/mccarthy.html and Kristen Bell, http://www.msnbc.com/politicsnation/watch/kristen-bell-speaks-out-on-vaccines-401163331804 have spoken out vehemently on each side. Parents on both sides of this debate have the best interests of their children at the core of their belief and believe that those that feel differently are endangering their children or even society as a whole. This makes it very difficult for these two diametrically opposed views to be reconciled into any form of compromise. For some parents the belief against vaccination is integral to a religious belief. For many it is based on conflicting medical and scientific data. Some believe that vaccines increase the likelihood of cancer and others allege a link between vaccinations and autism. http://www.ageofautism.com/2015/02/neil-miller-why-people-choose-not-to-vaccinate.html.

There was a study produced in 1998 by Dr. Andrew Wakefield that claimed to establish a link between vaccinations and the onset of autism. This study has been criticized for a number of reasons including the sample size of only 12 children as well as other procedural issues. Some have called it fraud and there is litany of pervasive criticism against the study, see http://topics.nytimes.com/top/reference/timestopics/people/w/andrew_wakefield/index.html. Still many parents of autistic children are insistent that they witnessed this change in their child as a result of a vaccination injury. see http://www.ageofautism.com/2014/06/-dear-parents-you-are-being-deceived-about-vaccines-and-autism.html ; and http://www.webmd.com/brain/autism/searching-for-answers/vaccines-autism. With the conflicting information available many parents have a difficulty making that decision and find that they are choosing between the lesser of two evils. http://www.nbcnews.com/id/35638229/ns/health-childrens_health/t/parents-thinks-shots-cause-autism/#.VP3t0rmPKUk. The most recent Disneyland measles outbreak has stoked the fire of this debate, and while there is a marked increase in outbreaks, some will insist the lack of vaccination is only a part of the problem or that it is still the constitutionally protected right of a parent to make that choice. http://www.slate.com/blogs/bad_astronomy/2015/02/03/disneyland_measles_anti_vax_beliefs_are_just_one_part_of_all_this.html.

Many of those that believe that parents should not be forced to vaccinate their children are in disbelief that the government that we trust to uphold certain freedoms of personal choice and autonomy could have the ability to intervene and force a parent to make a decision for their child that they truly believe will put the child at risk for a life long condition such as autism. Vaccine proponents believe that one's individual liberty and freedom of choice ends where it begins to endanger the life and liberty of others, including the choice to not vaccinate which would expose others and a community as a whole to illnesses they would like to have the choice not to catch. While this debate rages on, domestic courts can only examine a very narrow aspect of this debate, what is in the best interest of the minor child. Yes, the Court can override a religious or philosophical choice not to vaccinate based on what evidence is presented.

An example of the analysis a court will entertain is illustrated by a 2011 case in the state of Florida, Winston v. Brown, (Fla. 4th DCA 2011),( see http://www.4dca.org/opinions/Jan%202011/01-26-11/4D10-1811.op.pdf. ) In this case the court erred in the favor of a Father insisting on the vaccination of a child over the Mother's belief in holistic medicine and strongly against vaccination. The opposition of the Mother to vaccinations was rooted in religious belief and both parties presented conflicting experts. In this case the trial court determined that "The issue . . . is not one of simply exposing the minor child to the mother's religious beliefs and practices, it involves an

issue that could cause physical and serious harm to the minor child." The Florida Court of Appeals upheld the ruling since there was sufficient evidence to support this ruling in the record. The thrust of the decisions in these cases boils down to the expert testimony presented and the ability of the court to weigh the medical evidence of harm to the child against the constitutional rights of each parent to make decision for that child based on religious expression.

There is no firm precedent on which situations will warrant a state override of a parents decision not to vaccinate their children or which parent a court will award decision making to. Public policy in the state of Colorado seems to be shifting towards making it harder for parents to opt out of the vaccination requirement, even in agreement.

Courts are likely to give the CDC and state authorities a rebuttable presumption to formulate policies that are in the best interests of a minor child. Every case is different and any case involving decision making for a minor child will involve a complicated examination of various issues affecting that child. Much of the decision of a court on such a hotly contested issue will be based on the presentation of the evidence in your case, regardless of which side of the debate you will fall on. If you are faced with such a legal dilemma please seek legal assistance with to best prepare your case.

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