Could Appeals Court Decision Pave Way for Mandatory COVID-19 Vaccines for Children?

Even before the pandemic began, the debate over vaccinations for children was a heated one in New Jersey. Over the the past year, and notably pre-COVID-19, lawmakers introduced dueling bills — both for stricter vaccine exemptions for children attending public and private schools and bills advocating for increased vaccine choice for parents.

 The immunization debate isn’t going anywhere, and now with a COVID-19 vaccine more clearly in sight, the clash over mandatory shots for kids seems poised to ignite into an even more ferocious battle of parental rights vs. state mandates.

he New York State Bar Association has already begun to encourage legislation requiring most children and adults to receive the COVID-19 vaccine, where and when available. 

New Jersey lawmakers have yet to officially pick up this issue. However, they might not have to, thanks to a court ruling from 2019 that affirms government intervention in requiring vaccination if it prevents a child from harm.

June 2019 may feel like several lifetimes ago. But in that month an important New Jersey appellate court ruling came down that could profoundly affect parental rights to say no to routine immunizations and vaccines.

New Jersey parents have rights when it comes to making medical decisions for their children. This includes the right to make certain medical choices based on religious beliefs. Under current law, a child can attend public and most private schools with select or no vaccines if the parent or guardian provides a valid religious or medical exemption letter to the school administrator.

Are there limits to these rights? This is the idea that was tested in New Jersey Div. of Child Prot. & Permanency v. J.B., N.J. Super. App. Div.

The answer the court handed down was a very simple yes.

In this Department of Child Protection & Permanency (DCP&P) case, parents and children were living together, but there was evidence of child neglect and elevated abuse risk. DCP&P discovered through follow up inquiry with the children’s doctors that they had not received vaccinations. The parents stated they chose not to vaccinate due to their religious beliefs, a choice protected by law.

At the initial trial, the family courts found enough evidence of neglect to grant DCP&P custody of the children. Then, upon further motion, the courts also granted DCP&P the ability to enforce vaccination of the children, ruling that it was necessary to safeguard the children’s health.

On appeal, the defendants (the parents) argued that the trial court erred in granting DCP&P authority to vaccinate their children because state law permitted religious exemption from immunization. They based their objection on school vaccine laws that allow exemption “from mandatory immunization if the child’s parent or guardian submits to the school, preschool, or child care center a written, signed statement requesting an exemption, pursuant to the requirements for religious exemption established at [the time].” 

The appellate court still upheld the order to vaccinate. As the ruling summary stated:

“Although the court acknowledged parents’ constitutionally-protected rights, it noted that such rights were not absolute and that parents’ wishes could be overridden if necessary to prevent harm to children. The court noted that objections to child immunization had to be based on medical or religious reasons; even if defendants’ objections were legitimately religious, the court held that the statutes cited by defendants concerned attendance at school,” not their general health.

Most non-vaccinating parents will not be involved in a DCP&P case, of course, but what is pertinent to our current COVID-19 debate is the court’s affirmation that the State is able to “intervene and override the desires of parents who refuse to consent to medical treatment if ‘it is necessary to prevent harm to a child.’”

So, it may be that the new question we need to start asking ourselves is this: Are COVID-19 vaccines necessary for preventing harm to children?

If NJ lawmakers do decide to take up vaccine legislation, this ruling may become pivotal in their decision making.

And this debate may need to come to a head soon. The coronavirus vaccine that appears closest to approval is one being made right here in New Jersey by Middlesex County pharmaceutical giant Johnson & Johnson. Just last week, the company pledged to have 100 million jabs ready as soon as FDA approval is reached, either later this year or early 2021.

News that a vaccine could be available soon may be cause to rejoice for those parents ready and willing to have their family inoculated against coronavirus. For parents already leery of vaccines, this first round of shots, produced under the government’s “Warp Speed” program, may be cause for concern. These parents may worry: Can a vaccine produced this quickly be safe? Is there too much room for error?

Just like everything we’ve encountered so far with COVID-19, there are so many difficult questions.

And few easy answers.

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Other relevant articles:

• Are Vaccine Choice Rights At Risk in New Jersey
• What If Your Ex Doesn't Want To Vaccinate The Kids?

About Bari Z. Weinberger, Esq.

Family law expert and certified matrimonial law attorney, Bari Z. Weinberger, is the founder and managing partner of Weinberger Divorce & Family Law Group, a family law firm serving divorce and family law clients throughout New Jersey with offices in key locations throughout New Jersey. Ms. Weinberger is a certified matrimonial attorney and experienced family law mediator. She is also a published author and frequent media contributor on divorce and family law for both local and national audiences.