Justice Alito Is An Anti-Vaxxer’s Best Friend

The conservative justice’s take on “religious liberty” is a threat to public health.

CREDIT: AP PHOTO/ STEPHAN SAVOIA
CREDIT: AP PHOTO/ STEPHAN SAVOIA

Last year, the California legislature eliminated “a parent’s ability under prior law to opt-out of the State’s vaccination requirements based on that parent’s personal beliefs.” On Friday, a federal district court rejected an attempt to halt this new law, explaining, among other things, that the Constitution’s religious liberty protections do not protect someone’s decision not to vaccinate their children.

Not so long ago, this would have been an unremarkable event. As Judge Dana Sabraw, a George W. Bush appointee, explains in Whitlow v. California, the Supreme Court established more than 70 years ago 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.” Mandatory vaccination laws prevent these very evils by shielding children from diseases and promoting herd immunity, which prevents contagious diseases from thriving by jumping from one unvaccinated host to another.

We live in a post-Hobby Lobby America

But we live in a post-Hobby Lobby America, where religious conservatives are eager to upend a longstanding balance between the interests of religious objectors and those of society as a whole. And these conservatives have powerful allies on the Supreme Court.

Their most ardent ally is Justice Samuel Alito, the author of the Court’s decision in Burwell v. Hobby Lobby and, more importantly for the vaccination law at issue in Whitlow, author of an ambitious attempt to shift power to religious objectors in a case called Stormans v. Wiesman.

Stormans was brought by religious business owners challenging a Washington state regulation requiring pharmacies to “deliver lawfully prescribed drugs or devices to patients.” They sought the right to refuse to dispense certain forms of contraception. After a federal appeals court rejected this claim, the Supreme Court chose not to hear the case, although it did so over the dissent of Alito, Chief Justice John Roberts and Justice Clarence Thomas.

Among other things, Alito objected to the pharmacy regulation in Stormans because it permitted pharmacies to refuse to dispense a medication for certain secular reasons, such as if a prescription contained “an obvious or known error,” if a customer does not pay for the prescription, or if the pharmacy does not accept the customer’s insurance. Alito claimed that “allowing secular but not religious refusals is flatly inconsistent with” a 1993 Supreme Court decision, and that “it ‘devalues religious reasons’ for declining to dispense medications ‘by judging them to be of lesser import than nonreligious reasons,’ thereby ‘singl[ing] out’ religious practice ‘for discriminatory treatment.’” For this reason, he would have subjected the regulations in Stormans to the highest level of constitutional skepticism.

Which brings us back to Whitlow and the question of whether anti-vaxxers can use religion to justify refusing to vaccinate their children.

Under current California law, a parent may still refuse to vaccinate their child if the child is home schooled, or if the child has a medical condition or disability justifying the decision not to vaccinate. The plaintiffs in Whitlow make the same argument Alito advanced in Stormans, that a law “violates the First Amendment because it provides secular exemptions but fails to provide a religious exemption.” Thus, these plaintiffs claim, because children may receive medical exemptions or be exempt if they are particularly unlikely to transmit diseases to their peers, the state must also give an exemption to religious objectors.

Judge Sabraw, however, viewed this claim much more skeptically than Justice Alito did in Stormans. As he explains, “a majority of the Circuit Courts of Appeal have ‘refused to interpret’” a key Supreme Court decision “‘as standing for the proposition that a secular exemption automatically creates a claim for a religious exemption.’” For the moment, at least, Justice Alito is in the minority with his claim that a law with secular exemptions is constitutionally suspect unless it also contains religious exemptions.

That could rapidly change, however, depending on who fills the current vacancy on the Supreme Court, and on who replaces many of the Court’s aging members. One seat on the Court remains vacant due to Senate Republicans’ refusal to confirm anyone nominated by President Obama, and three other current justices are quite elderly.