Mississippi consistently ranks last or near-last in the United States on measures of health. But for decades, it ranked highest in vaccination rates, because of its strong vaccination law. Now, that singular achievement may change, thanks to a case brought by an anti-vaccine group. This not only puts Mississippi’s children at risk of disease, but threatens to undermine protection for other children in other states.
In 1979, Mississippi’s Supreme Court struck down the religious exemption to its school vaccination requirement. Since then, Mississippi’s only exemption has been for medical reasons. As a result, traditionally last-place Mississippi led the nation in a key health care metric: childhood vaccination rates for kids entering kindergarten. This helped Mississippi keep its rate of preventable diseases low.
But now, a judge’s preliminary injunction requiring the state to provide a religious exemption puts Mississippi’s achievement at risk. Worse, the judge did so in spite of strong legal reasons to go the other way.
The lawsuit was brought by a group of Mississippi parents represented by an anti-vaccine group, according to anti-vaccine lawyer Aaron Siri, who took credit for the result. The parents’ argument for adding the religious exemption is that by giving a medical exemption, the state is treating a secular argument not to vaccinate — medical conditions that make vaccination unusually dangerous — more favorably than religious reasons, therefore discriminating against religious argument. The judge thought that the Supreme Court’s jurisprudence on religious freedom has been pushing this way, and on April 17, he issued his injunction, finding that the plaintiffs were likely to succeed in the case.
But the plaintiffs’ argument is deeply misguided. First, when it comes to childhood vaccines, there are many old precedents that hold that a religious exemption is not necessary, starting with the 1944 Supreme Court case of Prince v. Massachusetts. There, the high court said that a parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to a communicable disease or the latter to ill health or death.” Parents’ religious freedom does not automatically mean that children or the community can be put at risk.
Further, during the Covid-19 pandemic, several courts upheld vaccine mandates that had medical exemptions but not religious ones. The 2nd Circuit upheld a New York mandate that did that; the 1st Circuit, a Maine mandate. These courts did that because medical exemptions are not secular exemptions that go against the state interest. Vaccines mandates are there, in part, to protect those that cannot safely be medically vaccinated. Mandates mean “anyone who can be medically vaccinated should be.”
Religious exemptions don’t advance that goal; they undermine it. They especially undermine it because people lie to get religious exemptions from vaccines, often masking political motivations as faith-based ones, and that behavior is hard to police. That is obvious just by looking at the numbers: In places that allow them, religious exemptions are much more numerous than medical ones.
Why did the judge not address these issues? Because the state attorney general’s office did not raise them. The state essentially agreed with plaintiffs that the law violated freedom of religion and did not make the requisite arguments to support Mississippi’s law, essentially throwing the case. By doing so, the AG’s office did not represent the state’s interest, did not defend its law (which the legislature, at this point, did not change), and put Mississippi’s children at increased risk of dangerous preventable diseases, sacrificing one of its few public health achievements.
Already, rumors are flying that vaccine opponents in other states will try to follow suit. If they succeed, that means less vaccine coverage and more potential for outbreaks and epidemics. Even more concerning, given the attorney general’s office’s weak argument, it is not clear if the state will appeal. Even it does, we fear that it won’t make the persuasive, necessary argument. If the state does not come to the defense of children, Mississippi’s weakened mandate will remain in place.
The Mississippi decision to void its strong mandate is a sad result all around. It is legally wrong, morally unjust to children and bad public policy. Children in Mississippi and the United States deserve much better.
Dorit R. Reiss is a professor of law at UC Law San Francisco. Arthur L. Caplan is Mitty professor and head of the Division of Medical Ethics at the NYU Grossman School of Medicine in New York City.