More than two dozen Catholic school students and their parent have lost their initial appeal in challenging a Kentucky health department’s efforts to control a chickenpox outbreak they claim infringed on their religious beliefs.
In what is more than anything a victory for common sense, a three-judge panel of the Kentucky Court of Appeals sided with a trial court judge who ruled in April that the Northern Kentucky Health Department acted within its authority.
When a chickenpox outbreak occurred earlier this year at the schools, the Kentucky health department initially ordered that extracurricular activities be temporarily canceled. In March, as the illness spread, the health agency imposed the temporary ban on school attendance for unvaccinated students until 21 days after the onset of a rash for the last ill student or staff member.
Complications from chickenpox can include bacterial infections, pneumonia and encephalitis — inflammation of the brain, according to the U.S. Centers for Disease Control and Prevention. Complications aren’t common in healthy people with the disease, but high risk groups for complications due to a serious case of chickenpox can include infants, adolescents, pregnant women and people with weakened immune systems.
In handing down its ruling last Friday, the appeals court panel said, “The commonwealth has a compelling interest in taking limited and temporary steps to control an outbreak of a vaccine-preventable disease.”
The appeals court ruling applied to the trial judge’s refusal to impose a temporary injunction on behalf of the Catholic school students attending Our Lady of Sacred Heart and Assumption Academy who, along with their parents, challenged the regional health department’s actions.
The health department’s attorney, Jeff Mando, told The Associated Press Monday that the ruling “underscored the authority of local health departments to take reasonable measures to prevent the spread of infectious disease and protect public health.” The appeals court, he said, “recognized that this case was never really about the exercise of religious freedom. It was about preventing and controlling the spread of a contagious disease.”
The students, through their attorney, have cited religious objections to the chickenpox vaccine, claiming the original cells from which the vaccine was developed came from aborted fetus cells decades ago. However, the appeals court said there was no evidence that the health department required that parents have their children vaccinated
More than 80% of students at the two schools are not vaccinated against chickenpox. Their parents signed documents exercising their right to a religious exemption from vaccination.
Attorney Christopher Wiest, who represented the students and parents, told The AP Monday he will appeal to the Kentucky Supreme Court, commenting the appeals court ruling was “extraordinarily deferential to the trial court and added that the health department “targeted our clients for their religious beliefs and … retaliated against protected First Amendment speech.
In our view, a temporary order written to protect the health of unvaccinated students is not deferential, it’s just common sense. Hopefully the Kentucky Supreme Court will see it that way.