Largely eradicated illnesses have been making a comeback, like the recent measles outbreak in four New Jersey counties and in other States. Many blame the resurgence of these illnesses on so-called “anti-vaxxers” who choose not to vaccinate their children. Generally, New Jersey law provides protection for parents who, based on religious or medical reasons, choose not to vaccinate because parents have a fundamental Constitutional right to parent their children.
However, on June 10, 2019, the New Jersey Appellate Division in New Jersey Division of Child Protection and Permanency v. J.B. and C.R. (“J.B. and C.R.”), made clear that a parent’s choice not to vaccinate is not absolute. Of course, as with many judicial decisions, this case begs as many questions as it answers.
In J.B. and C.R., the New Jersey Division of Child Protection and Permanency (“DCPP”—formerly DFYS) had care and custody of two children who had been removed from their parents. The Mother had objected to DCPP having the children vaccinated on grounds of “the Bible and the First Amendment” and “DNA and foreign protein in vaccines which are not healthy.”
After a hearing, including expert testimony from the children’s Board certified pediatrician, the trial court decided that DCPP could have the children vaccinated over the Mother’s objection. The New Jersey Appellate Division affirmed, noting that since a court can order necessary and appropriate medical care for an ill or injured child, that logic would extend to medical care to prevent illnesses. In its final paragraph, the Appellate Division stated: “[a] court of competent jurisdiction has the authority…to order necessary and appropriate medical care for an ill or injured child over the objection of the child’s parents…[w]e perceive no meaningful distinction between the power to order prophylactic medical care in the form of vaccinations…and medical treatment for diseases already contracted. Indeed, the child’s best interests are better served by preventing rather than treating disease.”
Despite the Court’s ruling, New Jersey Courts do not have carte blanche to order unvaccinated children vaccinated. For example, religious and medical exemptions still exist for parents who do not want to vaccinate their children but nonetheless send them to public school.
The circumstances surrounding J.B. and C.R. case involved DCPP, which had care and custody of the children, and that fact was a significant consideration in the Court’s decision. The real question now is how will family courts apply this decision in “normal cases” with typical custody disputes. The case will no doubt have far reaching consequences or benefits—depending on your view—beyond the DCPP sphere. Take for example two divorcing parents, one who wants a child vaccinated and the other who does not. If the matter is brought before a court and a Judge is called to rule, after a hearing with expert testimony from a physician, I see no reason a court could not rely on the decision in J.B. and C.R. to rule in favor of the pro-vaccine parent.