Court Upholds Allowing Pro-Vaccination Parent to Make Vaccination Decisions for Children

Start atDutchess and DutchThe Alaska Supreme Court ruled yesterday that the matter was a misinterpretation of the Alaska Supreme Court’s decision.

Jason Dutch and Lady Donna Dutchess were married between 2008-2015. Their two children remain minors. Both of the parents were involved in their medical care. Each child was vaccinated in the course of their marriage. After the divorce, no child was vaccinated until 2021. Although the pediatrician for both children recommended that vaccinations be administered in December 2020 due to “misunderstanding between mother and father,” the father rejected this recommendation. Mother objected to vaccinations for religious reasons.

In the midst of several disagreements about custody, the father filed an application to change legal and bodily custody. The vaccination question was also brought up. In November 2020, the superior court conducted an evidentiary hearing. After the hearing concluded, the court indicated that it had taken the vaccine question under advisement.

Before the court could issue its order in April 2021 the father brought his children to their pediatrician to get vaccinations. At a later hearing, the father said that he was worried that his children were exposed to Tetanus. He also noted that the doctor had given the children “the most essential” vaccines. Hepatitis A, measles mumps and rubella, polio, tetanus and diphtheria were all given to the younger child. The vaccines were given to the older child for hepatitis A, human papillomavirus, HPV, meningococcal diseases, and Tetanus and Diphtheria.

A June 2021 order by the Superior Court granted father legal custody over vaccination decisions. This order stated that Father was to confer with Mother [regarding vaccinations]. Father will make the final decision if there’s a dispute. It was recognized by the court that “a” is what the mother did. [c]onstitutional right of her religion to practice it” however stated that religious liberty could be limited to safeguard the child’s health and safety.[t]There are many health benefits of having your children vaccined. This court used language that was taken directly from the United States Supreme Court’s decision. Massachusetts v. Prince (1944): “[t]Freedom to worship freely doesn’t mean freedom from communicable diseases or death to members of the community. …

Alaska Statute 25.24.150c requires custody awards and modifications to be made in the best interest of the child. This means that the court must consider the child’s “physical, emotional, mental and spiritual needs” and the ability of each parent to fulfill these needs. … The record in this case supports the superior court’s finding that granting the father the authority to make vaccination decisions served the children’s best interests. Children’s pediatrician stated that the mother “[d]Discussed with the father vaccination indications and benefits.” He said that vaccinating his children could cause severe illness, disability or even death. A father stated that he vaccinated his children because he was concerned that his child might be exposed to tetanus. The pediatrician administered only those vaccines she thought were most important. The court was not clear to make a decision against the best interest of the child, given the recommendations by the pediatrician and the willingness of the father to take into consideration those recommendations. {See, e.g., Shea v. Metcalf(Vt. 1998) (firming decision granting medical decision-making power to a father who wanted the vaccination of his children, after a board-certified pediatrician testified for him); Re A.J.E. (Tex. App. 2012) (relying on a court-appointed physician’s advice when there was a dispute between parents over vaccinating the children).} …

However, we aren’t convinced by the increased scrutiny [applied under the Alaska Constitution’s religious freedom provision]This does not apply to child custody decisions that allocate decision-making power between parents. We also note the fact that other states courts have ruled that parents who hold different religious convictions do not need strict scrutiny to make a custody decision. You can find out more. BonjourIn Alaska 1979, we discussed a parent’s claim for an establishment clause. We explained that the courts should generally be neutral toward religious belief or absence of parents when they analyze children’s best interest and make a custody decision. A court that applied custody statutes in an unjust manner would be interpreted as favoring organized religion. This is what the establishment clause is meant to stop. Our analysis is consistent with this. Bonjour, the superior court here properly considered how the mother’s desire not to vaccinate the children was contrary to the recommendation of the children’s pediatrician and counter to their best interests….

[But e]If we had to use heightened scrutiny in accordance with Frank v. StateIn analyzing the free exercise claim of mother, the ruling by the superior court would not be reviewed. Protecting the health and well-being of minors is an “undeniably compelling” interest for the State. Other courts that have made vaccine mandates more specific held that the protection of health in the community and individuals is an important government interest. {Look! Brown vs. Stone (Miss. 1979); Wright v. DeWitt Sch. Dist. No. Ark. Cnty. (Ark. 1965); Whitlow v. California (S.D. Cal. 2016. Since over 100 years, all courts, federal and state, have held this position, implicitly or explicitly.”); Shepp v. Shepp(Pa. 2006) (Explaining the compelling state’s interest to safeguard a child against threats to his welfare); Roberts v. Roberts (Va. App. 2003) (“[T]he protection of children from harm, whether moral, emotional, mental, or physical, is a valid and compelling state interest.”).} The superior court’s decision is rescinded because the State has a high-order interest in the protection of children’s health. Frank analysis….

{“The mother claims the decision to award vaccine decision-making authority to the father violated the regulation that governs vaccine requirements for children before their admission to school. She cites 4 Alaska Administrative Code, (AAC) 6.055(f), (2018). There is an exception to the regulation if the child’s parent or guardian signs an affidavit stating that immunization does not conflict with any tenets or practices of the religious church of which the applicant belongs. The regulation does not address internal family decisions, but admission to school. The regulation doesn’t bar one parent from giving their child vaccines over objections of another. Therefore, it does not apply in this situation.}