Turn About in Legal Land
A century and a quarter ago, the Supreme Court upheld the State of Massachusetts’ right to compel smallpox vaccination. While Jacobson v. Massachusetts specifically elevates the state’s police power to protect the populace from disease over an individual’s right to freedom (the claim plaintiff Paster Henning Jacobson raised was akin to those in the medical freedom and religious rights movement today), the case also reports in careful detail the century-long history of compelled vaccination around the world, dating the near international vaccine acceptance to the late 1700s and early 1800s.
In the next three centuries, as vaccines became more available and accepted, [BB1] we’ve eliminated smallpox, virtually eliminated polio, and many childhood diseases. America and Canada had been declared measles-free by the World Health Organization. However, due to the resurgence of the medical freedom movement, Canada has just lost that designation, and we are on the cusp. The latest tally is that there have been some 2500 reported measles cases in the US this year and three deaths. [1] As the medical freedom movement champions the right of individuals to choose to be vaccinated, their freedom has imposed involuntary quarantine on hundreds in South Carolina. Pertussis cases are surging across the country. Last year, there were six times as many cases as 2022. In 2024, Texas recorded in 1928 cases; by this October, the state had exceeded 3500 cases.
While every state mandates childhood vaccines before attending school, some exemptions are available for medical and religious/philosophical reasons. These were once hard to come by, especially the religious ones. No longer. During the 2018-2019 measles epidemics, entities advertised that they would provide religious vaccine exemptions. Now it’s available almost for the asking. This year, the proportion of exemptions for childhood vaccines rose to 7.5%- the highest level ever, and growing. Idaho has the highest rate, with 12% receiving at least one type of exemption. Reportedly, Idaho public health departments are no longer providing COVID-19 vaccines to residents in six counties. Following Idaho in rankings came Alaska and Utah.
These levels are significantly short of the 95% coverage required to control measles. Measles and other childhood diseases are spreading, with numbers varying by state and vaccine laws.
In Georgia, MMR coverage for kindergartners dropped to 88.4% in 2023-2024. In Florida, the home of arch-contrarian public health official Joseph Ladapo, the rate dropped to 88.1%, all due to lax vaccine regulations.
Religious and Personal Exemptions
Legislative exemptions for religious reasons come in various forms and flavors, from outright bans on religious exemptions in four states: California, Connecticut, Maine (although it’s in litigation), and New York. Until recently, that number was six. In January 2025, West Virginia Governor Morrisey signed an Executive Order allowing religious exemptions from compulsory school vaccines, and as of April 2023, Mississippi, one of the original six, had also relaxed its rule, now allowing requests for religious exemptions. Even in the four die-hard states, bills have been introduced seeking to allow non-medical exemptions. New Jersey avidly sought to be added to the list, only to be overrun by busloads of objectors pressuring legislators, allegedly masterminded by Del Bigtree.
Unsurprisingly, the influx of childhood diseases is rising in tandem with declining vaccination rates, according to KFF The share of children claiming an exemption from vaccination requirements for one or more vaccinations rose to 3.6%.
Twenty-nine states and Washington, D.C., expressly allow exemptions based on religious reasons, and many states allow exemptions for personal reasons; however, the meaning and proof of these exemptions vary by state and over time. The definition and evidence of religious beliefs, too, have changed. Religious beliefs used to mean a documented and sincerely held conviction. No more.
- Montana passed HB 715 in 2023, requiring schools and the Department of Health to accept all requests for religious exemptions and removing the Department's authority to deny false claims.
- In Minnesota, if a child's parent or guardian, or an emancipated minor, wishes to be exempt, based on their beliefs, they simply submit a statement to this effect, notarized and signed by the individual.
- Oregon and Vermont allow religious exemptions, but both include a prior parental educational requirement.
- Some states require annual renewal of the exemption process to curb exemptions.
Many of these bills end up in court, where the anti-vax lobby has savaged the system. While vaccination laws are local and enacted by the state, many claims seeking First Amendment Protection are brought in federal court, where the jurisdiction is broader than a single state, allowing for farther-reaching and outsized ramifications. Integrating other constitutional claims, such as treating vaccine refusal as a protected class (akin to discrimination cases), is also being filed. Montana recently passed a law to protect individuals from discrimination because of their vaccine status, upheld by the 9th Circuit, the largest federal Circuit geographically [2].
“Another group, the Informed Consent Action Network led by former Kennedy spokesperson Del Bigtree, writes on X, that ICAN is funding “approximately 90 active lawsuits across the country to protect medical freedom and to fight for transparency.” In August, according to Public Health Watch the group filed, a 169 page complaint in California, “filled with antivaccine misinformation that is clearly directed to a public audience.”
Litigiousness spreads: Last month, Texas physician Mary Talley Bowden and three other doctors filed a lawsuit against the Federation of State Medical Boards and six state boards for alleged censorship and government overreach.
Perhaps it is not surprising that not only is measles on the upsurge, but so are other childhood diseases. Pertussis, or whooping cough [3], a deadly disease that before vaccines were available once killed 9000 children a year and affected 200,000 more. You can guess where the cases are rising fastest: Texas, Florida, California, and Oregon. By October 2025, Texas logged 3500 cases, and the preliminary national tally for 2024 registered more than six times as many cases as in 2023. Milwaukee reported 18,506 cases by October, the highest since 2014. One study demonstrated that children exempt from vaccines were 22.2 times more likely to acquire measles and 5.9 times more likely to acquire whooping cough than vaccinated children.
Laws, like medicines, have side effects.
At least twelve states have laws to limit vaccine exemptions during an outbreak. Even states with religious exemptions can limit their exposure during an outbreak. That means closing the schools. So, the anti-vaxxers might want to reconsider what they wish for. In one district in Texas (where vaccination was 77%), absences surged to 41% during the outbreak as parents kept their kids home out of fear of infection or because school officials told them to stay home.
The Texas outbreak lasted 42 days, but when the Seminole District restricted student attendance, no one knew how long children would be forced to remain at home. At the end, 99 people were hospitalized, and two children died.
Implementing stay-at-home orders, the bane of the COVID-19 response, might be a last-ditch effort to deal with those refusing vaccination, whether it be due to medical freedom or vaccine skepticism, or religious or philosophical preferences, real or arbitrary. However, quarantine- forced or voluntary, does nothing for parents like Jen Fisher, whose 12-year-old son, born with a congenital heart condition, is medically unable to take the vaccine. The only thing that prevents him from contracting the disease is societal acceptance of our social duty to balance our medical freedom.
[1] The CDC tallies are as of Dec 9 are less, a bit over 1900; some say that their records are not up to date, a consequence of Kennedy’s activities. Groups are trying to “fill in the data void after Kennedy slashes agency void.”
[2] which also has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, Washington, and the territories of Guam and the Northern Mariana Islands.
[3] Once called the 100-day cough because it literally lasts 100 days, according to a family nurse practitioner
