Using Law to Restrict Freedom of Religion and Conscience: The Vaccination Issue

Generally speaking, those of us above “a certain age” grew up suffering from dangerous childhood diseases, such as chicken pox, measles and mumps, among others. Most of us survived, but not every child did and even among the survivors, children lost their hearing or there were other negative consequences (increased risk of miscarriage for women contracting measles during pregnancy, for example). Measles can result in swelling of the brain, ear infections, pneumonia, among other serious conditions.

What a blessing the vaccines to end these diseases were. The measles vaccine was introduced in 1963, the mumps vaccine was approved in 1969, the chicken pox vaccine much later. Today there is a single measles, German measles and mumps vaccine, as well as vaccines for a host of other diseases that were once much more common. These vaccines are safe, cheap and easily accessible, although there are still areas where they are not common and these diseases are endemic. In Canada, the number of mumps and measles cases cases dropped dramatically with widespread vaccination. Measles, for example, was said to be eradicated in Canada in 1998. Crucial to maintaining “eradication” is “herd immunity”, meaning that enough people are vaccinated that they do not pose a risk to others.

However, recently, there have been outbreaks of measles because of an increasing number of parents refusing to vaccinate their children. As a result, the flexible approach to requiring children to be vaccinated, through religious and philosophical objections, is being questioned. These are exemptions granted by law: how easy is it for law to take them away?

In Canada, while all the provinces and territories encourage childhood vaccinations, they use different approaches to doing so. Ontario and New Brunswick are the most stringent, making vaccinations mandatory for children attending the public school system, while permitting exemptions on medical, religious and philosophical/ideological/conscience basis. British Columbia anticipates a mandatory reporting system, but generally the approach is to encourage vaccinations through government websites with extensive information and providing vaccines without cost. Some provinces and territories, such as Nunavut, explicitly explain their decision not to make vaccinations mandatory for children to enter school because they believe it would contravene rights; others say they do not want to deny children the opportunity to attend school on this basis (Nova Scotia says they might receive inaccurate information under the requirement); yet others (Saskatchewan, for example) are satisfied that other methods have resulted in the levels of vaccination that provide “herd immunity”, that is, general overall protection.

Section 10 of New Brunswick’s Education Act allows the superintendent to deny children attendance at public school if they cannot show that they have been vaccinated against several diseases before entering school. Exemptions are allowed on medical grounds and if the parent provides “a written statement, on a form provided by the Minister and signed by the parent, of the parent’s objection for reasons of conscience or religious belief to the immunizations required under the Public Health Act or the regulations under that Act. New Brunswick is planning on ending the religious and philosophical exemptions and making vaccinations mandatory for teachers and staff in the public school system.

In Ontario, the Immunization of School Pupils Act law also requires children to be vaccinated against a list of diseases before they can attend school; the Act permits exemptions for medical reasons (this requires a medical certificate limited as to disease and effective time period) and for reasons of “conscience or religious belief” (in this case, the parent must, since September 2017, attend an educational session about vaccines and must file a certificate with the medical officer of health, subject to a fine of $1,000 for non-compliance). A report in the National Post earlier this year suggests that these sessions have not changed anyone’s mind and may have entrenched opposition because parents feel insulted. Non-vaccinated students can be removed from school if there is an outbreak of disease. Ontario is not considering ending the exemptions based on religion and conscience.

Other jurisdictions, including Maine (where the law covers students at public and private schools and universities, as well as employees at health care facilities), have already eliminated the religious and conscience-based exemptions. Among other states, California eliminated these exemptions for public school students in 2016. The state’s experience is illuminating, since a study showed:

the rate of children entering kindergarten who were not up-to-date on vaccinations decreased over the first year from 7.15% to 4.42 % However, in the second year after the bill was passed, the percent of kindergarten students not up-to-date in their vaccinations increased from 0.45% to 4.87% and not because of a resurgence of non-medical exemptions—but work around exemptions—meaning more parents were claiming medical exemptions for their children, or home-schooling, or simply said they were “overdue” but would be caught up eventually.

California is now seeking to tighten the requirement by requiring medical exemptions to be assessed by the state health department, an effort that is attracting lobbying by those opposed to vaccinations. According to the LA Times story, the sponsor of the bill has said, parents “harass and try to intimidate. They’ve threatened my life and threatened to harm my family. They engage in a lot of hate speech. Compared me to Hitler, Pol Pot and Mao Tse-tung.”

Mandatory requirements to vaccinate children before they go to school may be relatively acceptable because they are relatively easy to circumvent through the non-medical exemptions. Efforts to end religious and conscientious objection exemptions may therefore increase the number of parents who object to the basic requirement. But this is a situation in which parental choice, whether clothed in these exemptions or not, risk others, especially in the case of the measles virus, which is extremely easy to catch. How successful is New Brunswick likely to be in facing a challenge to removal of the non-medical exemptions? What lessons might there be for Ontario should it decide to change its law?

We know that while parental choice is given a great deal of respect, there are times it is overriden by other interests. The Supreme Court of Canada in B. (R.) v. Children’s Aid Society of Metropolitan Toronto held that parents cannot refuse to have their child receive a blood transfusion because of religious belief, when it was necessary to save the child’s life. Although four judges in Children’s Aid Society of Metropolitan Toronto held that the refusal to permit a blood transfusion for a child was not protected by freedom of religion, it is probably more realistic to assume that parental choice about vaccinations on the basis of religion and conscience is protected under section 2(a) of the Canadian Charter of Rights and Freedoms, particularly since these exemptions already exist. The Supreme Court has tended to take a broad view of freedom of religion (Syndicat Northcrest v. Amselem), not seeking to explore whether an expressed belief is held by the “official” religious institution (it would be a rare religion in Canada that has as a tenet non-vaccination, with the Dutch Reformed Church being one) or whether it is valid or not.

However, the issue of freedom of conscience is even harder. In R. v. Big M. Drug Mart Ltd., then Chief Justice Dickson referred to conscience deriving from our political and philosophical traditions and should be limited only when it hurt others or infringes on the rights of others.

It is worth noting, too, that in Children’s Aid Society of Metropolitan Toronto, the court said that there is a difference in the right to hold a religious belief and the right to act on it (also see Trinity Western University v. British Columbia College of Teachers). The same is presumably true of conscience.

Assuming, for the sake of argument, that challenges to elimination of the non-medical exemptions would survive the first stage of a Charter analysis, I concentrate on the section 1 justification: whether elimination of the exemptions in a mandatory vaccination program constitute a pressing and substantial objective; and whether the elimination of the exemptions is proportional to the burden on the religious beliefs and beliefs based on conscience, including whether the limit is rationally connected to the objective, whether there is minimal impairment of the right and whether there is a balance between the benefits of the limit and its deleterious effects.

Here, while there is some concern that parents are making a decision that could have serious deleterious effects for their child, even if not a likely result, the emphasis has been on the failure to achieve herd immunity because too many parents are objecting to having their children vaccinated. Without herd immunity, the eradication of these diseases is at risk and thus maintaining herd immunity is a pressing and substantial objective under section 1 of the Charter. Data showing that there has been an increase in measles cases (as well as other diseases) and there has been a decrease in vaccinations to the extent that they have fallen below the level required for herd immunity are relevant at this stage, as are the effects of these diseases. The government must be prepared to show that it has an effective system for tracking vaccinations and thus non-vaccinations, that is, ensuring parents provide medical records or the appropriate certificates. (On this point, for example, New Brunswick admits it has not been enforcing its program as it should have been; it is developing an electronic health records system.)

What considerations are relevant to the other portions section 1 analysis? The data seems to support that vaccinations are effective and that increasing vaccination rates is rationally related to herd immunity and to lowering the likelihood of “outbreaks” or “epidemics” of contagious diseases.

Alternatives that have already been employed and the way the exemptions have been framed are both relevant to minimal impairment.

Unless the law applies to all schools, and not only public schools, parents have the choice to send their children to private school or, even if the law applies to private schools, to home school them. Exemptions based on religion and conscience would appear to be a ready response to those who object to mandatory vaccinations. Unlike many Charter cases, however, there is evidence about how the exemptions have worked. One point that needs to be addressed, perhaps, is the extent to which objections based on conscience have risen relative to objections based on religion. Objections based on “conscience” may be grounded in false information (such as the autism link that has been shown to be false), beliefs that vaccinations, or multiple vaccinations, cause other kinds of harm (there could be a reaction, but less likely and less serious than the disease), belief that “eradication” means “never return” or the reason diseases have been eradicated is for other reasons, such as better hygiene (see World Health Organization, “Six common misconceptions about immunization“). Some people argue that vaccines are just an boondoggle by “Big Pharma” or are influenced by celebrities who oppose vaccines (the impact of social media on the rise in parents’ reluctance to get their children immunized is, like many other things, worth assessment). At a minimum, it would be of value in “tightening up” the reasons for which exemptions are permitted, even though this might in itself seem to offend the freedom of religion and conscience.

One argument is that it is not necessary to eliminate the exemptions because it would be more minimally impairing to provide more information about vaccinations that could respond to the objections, since this would (might) result in fewer people claiming exemptions. Education does not seem to be effective, though. Ontario’s course requirement has apparently merely offended parents, rather than show them that their concerns may not be valid. Parents whose concerns for their children are dismissed out of hand or ridiculed are less likely to reconsider their position. Another issue is how effective elimination of these non-medical exemptions would be. Any law that removed them would also have to minimize the potential for abuse by replacing them with claims for medical exemptions (given the California example), as well as maintaining up-to-date records to ensure that parents do file evidence that they have vaccinated their children.

To the extent that a parent’s religious beliefs or conscience is infringed by the requirement that their child(ren) be vaccinated in order to attend school, the requirement to vaccinate is either a less significant infringement or, indeed, is merely refusing to accept as the legitimate basis of a conscientious objection misinformation that might form the basis for the objection (admittedly, this may be difficult to distinguish) than the negative impact on others whose section 7 right to life and security of the person may be potentially infringed. Those who for medical reasons are unable to get vaccinations are at greater risk; young children before they become vaccinated are also at risk; and, of course, the other children whose parents did not have them vaccinated. In short, at this last stage of the analysis, the general principle that acting on religious or conscientious belief ends where it hurts or infringes on the rights — here the health and safety — of others satisfies the final step under section 1.