Herd Protection v. Vaccine Abstention: Potential Conflict Between School Vaccine Requirements and State Religious Freedom Restoration Acts.

I. INTRODUCTIONJust fifty years ago, the United States suffered around four million cases of measles annually.1 Then, the Food and Drug Administration ("FDA") licensed a measles vaccine, and local boards of health made inoculation a prerequisite to school enrollment.2 By 2000, measles was no longer endemic to the United States.3 While that is a great public health success story, the account of measles in the United States, unfortunately, does not end there.In May 2014, the Centers for Disease Control and Prevention ("CDC") announced that there had already been more confirmed cases of measles in the country that year than the highest yearly total since 1994.4 That seems to have only been a harbinger, however, as the early months of 2015 bore witness to a significant measles outbreak beginning in Disneyland, and then spreading elsewhere in California before expanding to other states and Mexico.5 Measles was not the only vaccine-preventable disease that made a comeback in 2014-California also suffered a pertussis epidemic.6 The unifying factor between the resurgences was that clustered outbreaks of the two diseases occurred in communities with low vaccination rates.7Both the occurrence of vaccine-preventable diseases and communities with diminishing vaccination rates are on the rise due to the increasing momentum of the anti-vaccination movement.8 Vaccine requirements are typically a matter of state law and are an exercise of a state's police power.9 While all states have vaccination requirements for minors attending public school, those requirements are paired with exemptions of various types.10 A state does not, however, necessarily grant every vaccination exemption that parents seek for their children. When an individual's exemption is not granted, she may bring suit against the State.11 The Supreme Court has upheld compulsory vaccination laws when it has addressed them.12 The Court has not, however, directly ruled on whether an individual has a constitutionally protected right to a religious-based exemption.In 2014, the Court's holding in Burwell v. Hobby Lobby Stores, Inc. prominently featured religious exemption in a somewhat different, but still healthcare-related context.13 There, the Court applied the federal Religious Freedom Restoration Act ("RFRA")14 in the context of a corporate employer seeking religious exemption from the contraceptive mandate piece of the Affordable Care Act.15 Applying the strict scrutiny required by RFRA, the Court determined that the mandate unnecessarily burdened the closely held corporation's religious practice. Additionally, the Court recognized the wide range of religious beliefs that RFRA may protect.16While RFRA's breadth as recognized in Hobby Lobby seemingly sets the stage for successful challenges to vaccination laws, the Court held in City of Boerne v. Flores that the federal RFRA cannot regulate state action.17 Many states, however, have enacted their own RFRAs.18 When the expanding anti-vaccination movement and the beliefs protected by RFRA align, the inevitable result will be a case that pins the compelling state interest of preventing disease against the burden that vaccination poses to an individual's religious beliefs. Due to the broad religious protections of RFRA, a court may not uphold mandatory vaccination if the disease targeted does not create a sufficiently compelling state interest.This Note considers the conflict between vaccine requirements and religious beliefs as protected by state RFRAs. Part II looks at the characteristics of the diseases commonly targeted by vaccine requirements to determine the state interest in protecting against those particular diseases. Part III describes the current landscape of vaccination laws and exemptions in the United States. Part IV then examines each state RFRA, surveying both what the statute requires in a claim as well as existing case law. Part V addresses the hypothetical meeting point of vaccination laws and RFRAs. …