Spotlight on School Vaccine Mandates and Policymaking in the Courts: Part Two of Two

This is part two of a two-part series on litigation challenging school vaccine mandates. Part 1 of this series recounted the story of school vaccine mandates in Mississippi to illustrate the role court decisions play in setting vaccine policy. Part 2 provides a state-by-state update on ongoing or recent litigation that affects school vaccine requirements.

All 50 states and the District of Columbia have school vaccine mandates, and each provides medical exemptions. There are only five states that do not also offer religious or personal belief exemptions. It is unsurprising that current litigation is concentrated in the five states with only medical exemptions: California, Connecticut, Maine, New York, and West Virginia. Of course, until the U.S. District Court’s decision in Borsage v. Edney, which we discussed in Part 1, Mississippi would have made it six states with medical exemptions only.

Even though school vaccine requirements are state and local matters, when challengers assert that vaccine requirements violate their constitutional rights, they almost invariably sue in federal court. Organized anti-vaccine groups go to lengths to have their cases decided in federal court because a favorable ruling on a constitutional claim will preempt conflicting state court interpretations of state laws, like we saw in Borsage v. Edney. In addition, federal appellate decisions have much greater geographic reach than decisions by state courts because each federal Circuit Court of Appeals has jurisdiction over cases arising from the federal District Courts of several states. For example, the 2^nd Circuit Court of Appeals has jurisdiction over the appeals of cases arising out of the U.S. District Courts in Connecticut, New York, and Vermont. Conversely, the U.S. District Courts in Connecticut, New York, and Vermont must follow the interpretation of the law as set forth by the 2^nd Circuit. State court decisions do not have extraterritorial application in most cases. Thus, federal court decisions often have an outsized impact compared to a decision by a state court. Current anti-vaccine litigation centers on First Amendment Free Exercise claims because the Supreme Court’s COVID-19 decisions have made it easier to succeed on such challenges. But anti-vaccination litigators are pushing for shifts in constitutional rights doctrine that would treat vaccine status as a protected class, or would create a fundamental right to refuse a vaccine that has constitutional protection. We see similar moves taking place in state legislatures. For example, Montana recently passed a law protecting individuals from discrimination because of their vaccine status. The 9^th Circuit upheld the law in Montana Medical Association et al v. Knudsen et al.

School Vaccine Litigation Update

This litigation update is divided into two sections. The first section lists and analyses ongoing litigation by state. The second section lists the previous decisions of Circuit Courts of Appeals that are likely to influence the outcome of school vaccine challenges being litigated in the lower courts within their respective jurisdictions.

Recent and pending lawsuits challenging school vaccine mandates

California (9^th Circuit)

Royce v. Bonta

U.S. District Court for the Southern District of California, Docket No. 3:23-cv-02012

This case challenges California’s lack of religious exemptions for its school vaccine mandate. Advocates for Faith and Freedom are the lawyers for the challengers. On March 25, 2024, the District Court issued granted the state’s motion to dismiss, after a thorough discussion of the constitutional validity of California’s vaccine mandate. (Reporter citation, 725 F.Supp.3d 1126). But, because the Federal Rules of Procedure requires courts to grant leave to amend complaints freely, the Court granted leave to plaintiffs to file their 3^rd amended complaint, which they did on December 20, 2024. This case is back to square one, but with good precedent in place.

Brave and Free Santa Cruz v. Aragon

Complaint filed on August 23, 2024, in the U.S. District Court for the Eastern District of California, Case No. 2:24-at-01085

This case is a direct challenge to California’s Childhood Vaccine Mandates alleging a laundry list of U.S. and California constitutional violations. The complaint is a 169-page narrative filled with anti-vaccine misinformation that is clearly directed to a public audience. Significantly, the complaint seeks to enjoin the CDC from claiming that vaccines are safe. The claims in this case include:

• Plaintiff’s right to refuse unwanted medical treatments
• The right of unimmunized children to attend school (California education guarantee)
• The right of unimmunized children to peaceably assemble, to listen to speech, and to acquire information (First Amendment)
• Equal protection violation because unimmunized children are treated differently with respect to school attendance from immunized children (14^th Amendment equal protection, which asks that vaccine status be treated as a protected class)
•  Other claims:
• Seeking injunctive relief to allow disabled children with IEPs to attend school regardless of their immunization status.
• Alleging censorship over Dr. Douglas Hulstedt and other anti-vax doctors
• Seeking to enjoin the CDC from claiming vaccines are safe.

Doescher v. Aragon

U.S. District Court for the Eastern District of California, Docket No. 2:23-cv-02995

This case challenges California’s absence of a religious exemption to the state’s school vaccine mandate on First Amendment Free Exercise grounds. The District Court dismissed this case on November 18, 2024, for lack of standing, but without prejudice to allow plaintiffs to refile in a court with jurisdiction.

Connecticut (2^nd Circuit)

Milford Christian Church v. Bye (Russell-Tucker)

U.S. District Court for the District of Connecticut, Docket No. 3:23-cv-00304

This is a challenge to Connecticut’s decision to repeal the religious exemption to its school vaccine mandate. The U.S. 2nd Circuit Court of Appeals decided this issue in We The Patriots, USA, Inc. v. Conn. Office of Early Childhood, but the plaintiffs claim to have new evidence of religious animus. The evidence seems to be a repackaging of claims already rejected by the court hearing this case and by the 2nd Circuit. The Connecticut Commissioner for the Office of Early Childhood moved to dismiss on October 24, 2024. Briefing on the motion is ongoing.

Keira v. Lamont

Supreme Court of Connecticut, 350 Conn. 119 (2024)

This state court case has been finally decided. It involved another challenge to the facial validity of Connecticut’s repeal of the religious exemption to the state’s school vaccine mandate. The case was decided on sovereign immunity grounds, but to reach its decision the Court had to evaluate the likelihood that the plaintiffs would succeed in their challenge to the law. Even though this case was before Connecticut’s highest court, it adopted the reasoning and outcome of the 2^nd Circuit’s We The Patriot’s decision because it was persuasive.

Maine (1^st Circuit)

Fox v. Makin

US District Court for the District of Maine, Docket No. 2:22-cv-00251

This case challenged Maine’s repeal of its religious exemption to its school vaccine mandate. The 1^st Circuit decision in Lowe v. Mills came down while a motion to dismiss in this case was pending. The 1^st Circuit held in Lowe v. Mills that plaintiffs plausibly alleged that Maine’s religious and medical exemptions were comparable under recent Supreme Court decisions and that the case should be allowed to go forward. In this case, the District Court followed the 1^st Circuit’s lead and allowed the plaintiffs’ Free Exercise claims to go forward. More ominously, the District Court also applied strict scrutiny to plaintiffs’ equal protection claims and allowed them to go forward as well. Plaintiffs’ Equal Protection argument is that Maine’s vaccination law, by virtue of various exemptions and grace periods, creates a class of students who are allowed to attend school without being vaccinated. But students wishing to exercise their fundamental right to Free Exercise are excluded from the class of unvaccinated students allowed to attend school and were subject to unequal treatment. This case is ongoing.

Massachusetts (1^st Circuit)

Beaudoin v. Baker (Healey)

US District Court for the District of Massachusetts, 701 F.Supp.3d 45 (2023)

Plaintiff is a law student who was disenrolled from law school because he refused to be vaccinated due to his religious objections. The District Court held that the student lacked standing because the damages he alleged were of two insufficient types. The first type of insufficient damages was a generalized grievance that everyone in the Commonwealth was harmed by government officials’ statements about COVID-19 and the efficacy of the COVID-19 vaccine. The other type of insufficient damages that the plaintiff alleged revolved around his claim that he had been deprived of a legal education because his law school, and other law schools he might want to attend, have vaccine mandates that prevent him from attending. The court held that these allegations were speculative, not redressable by a court order, and could not fairly be traced to the government defendants’ actions. This case is on appeal to the 1^st Circuit.

New York (2^nd Circuit)

Miller v. McDonald,

U.S. District Court for the Western District of New York, Docket No. 1:23-CV-00484

The lawyer for the plaintiffs in this case is Aaron Siri of Siri & Glimstad. The Siri firm is heavily involved in the anti-vaccination legal movement.

In 2019, New York repealed the religious exemptions in its school vaccine law in response to a measles outbreak in New York and the rest of the U.S. The plaintiffs run Amish schools that do not require any vaccines for students to attend. New York state imposed statutory penalties for their non-compliance with the vaccine laws. They sued on the grounds that the law violated their Free Exercise Rights. The District Court found (among other things) that it was bound by the 2^nd Circuit’s decision in We The Patriots, USA, Inc. v. Conn. Office of Early Childhood and dismissed this case. The District Court recounted the legislative history of the religious exemption repeal in New York and found, like the Connecticut repeal at issue in We the Patriots, it met the requirements that it be generally applicable and neutral toward religion. Plaintiffs have appealed this decision. The 2^nd Circuit heard the appeal on November 18 but has not yet issued a decision.

West Virginia (4^th Circuit)

West Virginia Parents for Religious Freedom v. Christiansen

U.S. District Court for the Northern District of West Virginia, Docket No. 5:23-cv-00158

A little background on West Virginia will be useful in understanding this case. West Virginia, like Mississippi, has a long history of strict school vaccine policies. It has allowed only medical exemptions for many years. As a result, it has had only one reported measles case in the last 15 years, and that involved someone who had travelled internationally. An anti-vaccine faction in the state legislature has been trying to pass religious exemptions but has been met with bipartisan resistance. The state did manage to pass a law in 2023, the Equal Protection for Religion Act (EPRA), that required courts to apply strict scrutiny when reviewing any state action that “substantially burden[s]” the free exercise of religion.

Plaintiffs challenged West Virginia’s school vaccine law on Free Exercise grounds in federal court. But the federal district court that heard the case decided to abstain from deciding it and imposed a stay until the state courts of West Virginia could decide how to interpret its vaccine mandate under the newly enacted EPRA. Take note that Aaron Siri is representing the plaintiffs in this case, attempting to achieve here what he did in Mississippi in Borsage v. Edney.

On December 31, 2024, the 4^th Circuit reversed the District Court’s decision to abstain from hearing this case and remanded it back to the District Court.

Perry et al v. Marteney, et al.

U.S. District Court for the Northern District of West Virginia, Docket No. 2:24-cv-18

Aaron Siri represents the plaintiffs in this case. The plaintiffs’ child attends a virtual schooling program. When attempting to reenroll for the 2024 school year, school officials denied the child admission for being unvaccinated, citing West Virginia school vaccine requirements. This case is a straightforward facial challenge, but the virtual attendance is a factual twist.

The District Court granted the plaintiffs’ motion for a preliminary injunction because the medical exemption approval process in West Virginia has enough room for individualized assessment that it is not neutrally applied. The court then applied strict scrutiny to find that the state vaccine mandate was not narrowly drawn to carry out its purpose, especially given that the school in question is remote. The court clarified that it treated the case as an as-applied challenge to the West Virginia law and issued a preliminary injunction limited to the plaintiff only.

U.S. Circuit Court cases that may affect the outcome of pending and future challenges

1^st Circuit

Lowe v. Mills No. 22-1710 (1st Cir. 2023)

The First Circuit returned a case to the District Court of Maine for additional factual development on whether medical exemptions were comparable to religious exemptions. Maine had eliminated religious exemptions from its healthcare worker vaccination mandates. The Circuit Court found it plausible that the two exemptions would be comparable for Free Exercise purposes. The case was eventually dismissed for mootness because the case arose from a COVID-19 vaccine requirement, which ended before the case went to trial. Although the Circuit Court allowed the challengers to develop a factual record to support their claims, the opinion was somewhat skeptical about whether they could do so.

2^nd Circuit

Kane v. DeBlasio

19 F.4th 152 (2d Cir. 2021)

This case involved a flawed process that the City of New York used for reviewing religious exemptions to COVID-19 vaccines. It provides guidance on how individualized exemptions can be before running afoul of recent Supreme Court rulings.

3rd Circuit

Beth McDowell et al v. Bayhealth Medical Center, Inc.

No. 24-1157 (3d Cir. 2024)

The Third Circuit affirmed the District Court’s dismissal of the Plaintiffs’ Title VII religious discrimination claims. Plaintiffs in this case contended that “taking the vaccine would violate scripture because they believe the vaccine is unsafe, toxic, or harmful.” The Court held that these beliefs are based on personal, secular, and medical beliefs about the efficacy and safety of the vaccine rather than religious beliefs. The Court explained its holding by writing, “to allow such generalized objections would leave almost no limit to the accommodations that an employer would have to entertain under Title VII’s ban on religious discrimination.”

Rehearing by panel affirmed the decision December 26, 2024.

5th Circuit

Borsage v. Edney

U.S. District Court for the Southern District of Mississippi, Docket No. 1:22-cv-00233

We wrote about this case in detail in Part 1 of this series. The final decision in this case came from a District Court within the 5th Circuit. Thus, it is not binding on other District Courts, much less the 5th Circuit Court. But thus far, the decision stands. It requires the state of Mississippi to provide religious exemptions despite its long-standing law and policy that only allows medical exemptions.

6th Circuit

Lucky v. Landmark Medical

103 F.4th 1241

The Court applied a more generous standard for what constitutes a religious belief. Previously, courts had said that plaintiffs could not wrap a medical objection in religious language and call it a religious belief. In this case, the Court held that a belief that combined religious and secular elements qualified as a religious objection for Title VII discrimination purposes.

7th Circuit

Passarella and Dottenwhy v. Aspirus, Inc.

108 F.4th 1005 (2024)

Bube and Hedrington v. Aspirus Hospital, Inc.

108 F.4th 1017

These cases also involved the question of whether employees’ requests for exemption were religious in nature or primarily medical or personal objections. The 7^th Circuit also loosened the requirements for what constitutes a sincerely held religious belief by allowing religious exemptions based on a combination of religious and secular beliefs.

9th Circuit

Doe v. San Diego Unified School District

19 F.4th 1173

U.S. S.Ct. cert. denied on 2/18/2022. Case terminated on 3/17/2023

The 9^th Circuit upheld a COVID-19 vaccine mandate in California which did not provide religious exemptions. The Court applied rational basis review because the vaccine applied generally to everyone except those with medical condition for whom the vaccine is contraindicated by the CDC or the vaccine manufacturer, and whose medical condition is certified by a physician. The medical exemption served the primary purpose of protecting health and safety while religious exemptions would not.

The Court also noted that the difference in the number of students who would seek a medical exemption and those who would seek a religious exemption makes the two exemptions incomparable in that the magnitude of risk that each exemption posed to the legislative purpose of the mandate were incomparable.

Health Freedom Defense, Inc. v. Alberto Carvalho

104 F.4th 715

The 9th Circuit vacated a decision by the U.S. District Court for the Central District of California dismissing plaintiffs’ complaint alleging that the Los Angeles United School District’s (LAUSD) vaccine mandate violated their fundamental right to refuse medical treatment.

The plaintiffs argued that the COVID-19 vaccine only ameliorated symptoms in the vaccine recipients and did not stop the spread of the disease to other people. As such, the vaccine was not really a vaccine but a medical treatment. Plaintiffs claimed to have a fundamental right to refuse medical treatment and that the vaccine mandate impinged on that fundamental right.

The Court also said that Jacobson v. Massachusetts, 197 U.S. 11 (1905) did not apply to this case, because Jacobson only applied to cases involving vaccines that prevent the spread of disease.

10th Circuit

Does v. Board of Regents of Colorado

100 F.4th 1251

The Colorado Board of Regents implemented a religious exemption policy that discriminated against some religions over others in evaluating the sincerity of the religious belief. This is a case of bad facts making bad law. The Court went on to analyze “comparability” from the standpoint of the risk that an unvaccinated individual poses to other students. Under this analysis, the risk is the same whether the person is unvaccinated because of a religious or medical exemption. But this analysis is misplaced. Even strict scrutiny requires a court to examine a law in light of its purpose. Medical exemptions further the purposes of a law that aims to protect students from infectious diseases, while religious exemptions do not.