Stanley Mosk Courthouse

Scott J. Nord

Judge, Los Angeles County Superior Court

Whittier College School of Law

The national debate over vaccines for adults and minors is not a novel debate for the law. Court decisions on regulations regarding mandatory vaccinations go back almost 120 years.

Consider a Hypothetical

Parent A and Parent B have a minor child who will begin seventh grade next fall. The local public school has a mandatory vaccination policy for all childhood diseases for children entering seventh grade. The local school sent both parents a letter stating their child must provide proof of vaccination. The parents share joint legal custody of the minor child, but Parent A has been the primary caregiver and has taken the minor child to all of the child's medical appointments. Parent B works 45 miles from where the child resides and has not attended medical or dental appointments until recently. However, because of virtual appointments, Parent B has participated in the appointments for the past year. At a recent appointment, Parent B learned that the minor has never been vaccinated for any of the typical childhood diseases. Parent B was informed that Parent A had refused all vaccinations. The parties have attempted to resolve the matter between themselves informally but cannot come to a resolution.

Parent B files a request for order to seek a court order to allow the minor to be vaccinated so the child can attend the local public school. Parent A opposes the RFO because Parent B has never been involved with the minor's medical issues until recently, and Parent A has been the primary caregiver. Parent A also opposes the vaccinations based on potential side effects for the minor and personal beliefs. Finally, Parent A argues that Parent B previously agreed with the "no vaccination policy." Parent B accepts that they should have been more involved with the minor's medical issues but blames distance and work for lack of participation. Parent B agrees that initially when they were pregnant with the minor, the parties discussed a "no vaccination policy." Still, Parent B had assumed that was just a theoretical talk, and Parent A had vaccinated the minor since the child was already enrolled in public school. Rather than allowing the child to be vaccinated and continue in public school, Parent A now wants to home-school the child. How should the court rule?

Vaccines and Public Education

The U.S. Supreme Court has upheld the right of the states to enact and enforce laws requiring citizens to be vaccinated. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). In 1902, the Board of Health in Cambridge, Massachusetts, enacted a regulation to that effect. Massachusetts filed a criminal complaint against Jacobson for failing to comply with the regulation. Jacobson argued that the law was unconstitutional. The Supreme Court rejected the argument and held, "a community has the right to protect itself against an epidemic of disease which threatens the safety of its members[,]" and that "it was the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few." The court concluded that the statute was a proper exercise of the legislative police power, and it did not deprive Jacobson of his constitutional guarantees of personal and religious liberty.

In 1922, the Supreme Court considered another mandatory vaccination law but directed towards school-aged children. In Zucht v. King, 260 U.S. 174 (1922), the court upheld a Texas law that excluded children from Texas public schools because they were not vaccinated. Plaintiff argued that the laws violated her rights to due process and equal protection under the United States Constitution. The Court rejected those arguments. The Court stated it was long-ago "settled that it is within the police power of a State to provide for compulsory vaccination."

In Abeel v. Clark, 84 Cal. 226 (1890), a plaintiff unsuccessfully challenged a mandatory vaccination policy. Abeel, a scholar, had not complied with the provisions of what was known as the "Vaccination Act" and was denied admission to a public school in Santa Cruz, California. The act provided "that the trustees of the several common-school districts and boards of the common-school government of the cities and towns in this state shall 'exclude from the benefits of the common schools therein any child or any person who has not been vaccinated, until such time when said child or person shall be successfully vaccinated.'" The California Supreme Court upheld the law: "[i]t is suggested that the subject of the vaccination act is not within the scope of a police regulation. The legislature has power to enact such laws as it may deem necessary, not repugnant to the constitution, to secure and maintain the health and prosperity of the state, by subjecting both persons and property to such reasonable restraints and burdens as will effectuate such objects." The court added, "[v]accination, then, being the most effective method known of preventing the spread of the disease referred to, it was for the legislature to determine whether the scholars of the public schools should be subjected to it, and we think it was justified in deeming it a necessary and salutary burden to impose upon that general class." Accord French v. Davidson, 143 Cal. 658 (1904) (mandatory vaccinations for school-aged children do not violate the Constitution and the 14th Amendment).

Despite this long-standing judicial backing of legislative authority regarding mandatory vaccination laws, before July 1, 2016, parents could file for a personal belief exemption and opt-out of the vaccination requirements in California public schools. On Jan. 1, 2016, California Senate Bill 277 (amending California Health and Safety Code Section 120335) became effective, eliminating the PBE opt-out provision for vaccination requirements imposed on children attending public or private schools. Thus, as of July 1, 2016, school authorities "shall not unconditionally admit any child for the first time to 'any private or public elementary or secondary school, child care center, day nursery, nursery school, family day care home, or development center,' or advance any child to seventh grade, unless he or she has been fully immunized against 10 specific diseases and '[a]ny other disease deemed appropriate by the [State Department of Public Health],' or qualifies for an exemption recognized by statute." Love v. State Dept. of Education, 29 Cal. App. 5th 980 (2018). Students do not require vaccinations if they attend a home-based private school or independent study and do not receive classroom education (Section 120335(f)) or if they qualify and obtain an exemption based on physical or medical conditions (Section 120372).

In Love, the plaintiff argued that SB 277 interfered with their children's right to privacy regarding their medical treatment. The court rejected that argument, stated that the right to privacy, "fundamental as it may be, is no more sacred than any of the other fundamental rights that have readily given way to a state's interest in protecting the health and safety of its citizens, and particularly, school children, and removal of the [personal beliefs exemption] is necessary or narrowly drawn to serve the compelling objective of [SB] 277." In Brown v. Smith, 24 Cal. App. 5th 1135 (2018), the court found that SB 277 does not substantially burden the free exercise of religion or violate equal protection.

A Modern Quick Reference Guide to Vaccines

Under Health and Safety Code Section 120335(b), 10 different childhood diseases require vaccination to attend public schools. Here is a brief description of each disease that requires immunization:

Diphtheria: Diphtheria is a bacterial infection. It can cause difficulty breathing, heart failure, paralysis, coma and death. Vaccination: DTaP. The optimal time for vaccination: 15-18 months. Disease spread: air and direct contact

Haemophilus influenzae type b (Hib): Hib is a bacterial illness. It can cause meningitis (infection of the covering around the brain and spinal cord), epiglottitis (life-threatening infection that can block the windpipe and lead to severe breathing problems), pneumonia and death. Vaccination: Hib. The optimal time for vaccination: 15-18 months. Disease spread: air and direct contact.

Measles: A highly contagious infectious disease caused by the measles virus. It can cause encephalitis (brain swelling), pneumonia and death. Vaccination: MMR. The optimal time for vaccination: 15-18 months. Disease spread: air and direct contact.

Mumps: Mumps is a viral infection caused by the mumps virus. It can cause meningitis (infection of the covering around the brain and spinal cord), encephalitis (brain swelling), inflammation of the testicles and ovaries, and deafness. Vaccination: MMR. The optimal time for vaccination: 15-18 months. Disease spread: air and direct contact.

Rubella: The rubella virus causes rubella. It is severe in pregnant women and can lead to miscarriage, stillbirth, premature delivery and congenital disabilities. Vaccination: MMR. The optimal time for vaccination: 15-18 months. Disease spread: air and direct contact.

Pertussis (whooping cough): Pertussis is caused by the Bordetella pertussis bacteria. It can cause pneumonia and death. Vaccination: DTaP. The optimal time for vaccination: 15-18 months. Disease spread: air and direct contact.

Poliomyelitis (Polio): The poliovirus causes polio. It can cause paralysis and death. Vaccination: IPV. The optimal time for vaccination: 6-18 months. Disease spread: air and direct contact.

Tetanus ("Lockjaw"): Tetanus is a bacterial infection. It can cause neck and jaw muscles to lock, making it hard to open the mouth and swallow, make breathing difficult, and cause death. Vaccination: DTaP. The optimal time for vaccination: 15-18 months. Disease spread: Exposure through cuts in the skin.

Hepatitis B: Hepatitis B is an infection caused by the hepatitis B virus. It can cause chronic liver infections, liver failure and has been linked to liver cancer. Vaccination: HepB. The optimal time for vaccination: 1-2 months. Disease spread: Contact with blood or body fluids.

Varicella (chickenpox): Chickenpox is a viral infection. It can cause blisters, bleeding disorders, encephalitis, and pneumonia. Vaccination: Varicella vaccines The optimal time for vaccination: 12-15 months. Disease spread: air and direct contact

(Source for all content: Centers for Disease Control and Prevention.)

Can a Court Order Vaccinations?

There is currently no family law case that specifically addresses whether a family law court can order the vaccination of a minor child. However, recently in In re S.P., 53 Cal. App. 5th 13 (2020), the 2nd District Court of Appeal determined that a juvenile court does have the authority to order vaccinations for dependent children under its jurisdiction despite parental objections. In S.P., the Department of Social Services filed a juvenile dependency petition (Welfare and Institutions Code Section 300(b)(1)), alleging Father and Mother neglected and failed to protect their children. Both had an alleged history of substance abuse and mental illness. Mother had also recently given birth to a minor child, and Mother and the newborn had tested positive for methamphetamine and marijuana. The juvenile court detained the children and placed them under the custody and control of DSS.

During the proceedings, DSS sought to have the minor children vaccinated. The parents objected. Father provided medical exemptions for the minor children, which exempted them from being vaccinated "based on medical reasons," but no specific reason was stated. DSS countered with an opinion from a treating pediatrician, who said there was no medical reason not to vaccinate the minor children.

On these facts, the S.P. court stated that "[w]hen a child is adjudged a dependent child of the court ... the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment." "[P]rovisions of the Welfare and Institutions Code illustrate the juvenile court's authority to make all reasonable orders relating to medical treatment for a dependent child. No statute restricts that authority." (Quoting In re Christopher I., 106 Cal. App. 4th 533 (2003).) Consequently, the court has authority "to obtain care -- including medical care -- in the dependent child's best interests and consistent with what the parents should have obtained or authorized." The most relevant issue in the juvenile court's ruling was whether the children at the current time needed vaccinations. The court found they did: "The physicians(s) retained by the Social Services Department recommended a series of vaccinations for each child for their protection." The court ordered "that the children ... get vaccinated" because it was medically necessary.

Father's primary evidence against vaccinations were the exemption letters and the testimony from Dr. Johnnie Ham, who had written the letters. The court found the doctor lacked credibility: Ham did not know the children's current need for vaccinations; was not a treating doctor; was not a pediatrician; had only briefly seen the children on one occasion one and a half years before writing the letter, and did not have medical records documenting their medical histories before he signed the 2018 exemptions for them. He also expressed the view that "vaccines are dangerous and unsafe."

To vaccinate or not to vaccinate, that is the question

California Family Code Section 3003 states that "joint legal custody means that both parents shall share the right and responsibility to make the decisions relating to the health, education, and welfare of the child." Section 3011(a) provides: "In making a determination of the best interests of the child ... the court shall ... consider ... [t]he health, safety, and welfare of the child." Section 3020(a) states: "The Legislature finds and declares that it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children."

The court has broad discretion in making a child custody determination and may award custody to either parent based on "the best interest of the child." See Montenegro v. Diaz, 26 Cal. 4th 249 (2001). Appellate reversal of custody and visitation orders is justified only for abuse of discretion. In re Marriage of Burgess, 13 Cal. 4th 25 (1996); In re Marriage of Fajota, 230 Cal.App.4th 1487 (2014). In determining whether the trial court acted reasonably in making the order, the reviewing court must also determine if there is a "reasonable basis on which the court could conclude its decision advanced the best interests of the child." F.T. v. L.J., 194 Cal. App. 4th 1, 15 (2011). The trial court's exercise of its discretion "must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." Id.

In Cassady v. Signorelli, 49 Cal. App. 4th 55 (1996), the court granted Father final decision-making powers over disputed medical issues where it found Mother "generally has difficulty coping with the stresses and pressures of life"; has "questionable decision making ability"; and has "a flaky and at times almost delusional quality in her thinking." The trial court had also previously observed, "time and again the court found that matters testified to by mother did not align with what appeared to the court to be reality." Given the trial court's "very extensive discretion in determining what will be in the best interests of [the] child," the facts indicated that the mother's ability to make appropriate medical decisions for the minor child might be impaired and supported the trial court's decision.

In re Marriage of McLoren, 202 Cal. App. 3d 108 (1988), recognized the potential harm on children by warring parents: "although we may sympathize with the court's compassionate view that ultimately the children's best interests would be served by their having a full and involved relationship with each parent, the reality of their parents' conflicts unavoidably hampers the realization of that goal. Considered in the abstract, mutual assistance between the parents may well relieve some of the conflict and anxiety suffered by the children over the years; but the record contains no evidence the parties currently are ready, willing, or able to engage in such a cooperative effort. We also share the trial court's concern that the best interests of the children not be stymied because of either parent's refusal to cooperate with the other."

In other words, the child always thrives when parents can co-parent with each other. However, when that is not possible, the court must pivot to other alternatives such as changing legal custody or granting one party decision-making powers. The S.P. court provided a road map for inquiry to flesh out how a party came to their decision regarding vaccinations (i.e. what information and/or whose guidance is a party relying in coming to their opinion?).

So should the court order the minor child to be vaccinated? It depends...