Two local lawsuits ruled in favor of schools, not parents of unvaccinated children.

By Ronelle Grier

A pair of lawsuits filed in 2015 against Temple Israel and Hillel Day School, requiring them to accept unvaccinated children into their programs, highlights a fault line between religious institutions attempting to protect their communities from infectious diseases and those who choose not to vaccinate their children for philosophical or religious reasons.

Hillel was successful in defending a case brought by two families against the school, resulting in one family withdrawing their children and the other having their son vaccinated.

Ruvayn and Sara Rubinstein, whose children attended Temple Israel’s Early Childhood Center preschool program the previous year, sued the school in 2015 because it would no longer recognize non-medical waivers. The case was heard by Oakland County Circuit Court Judge Shalina Kumar and then moved to federal court in the U.S. Eastern District. There, Judge John Corbett O’Meara dismissed the Rubinsteins’ constitutional claims that their religious rights were being violated because Temple Israel was not a governmental body.

The case was sent back to Oakland County Circuit Court, where Judge Kumar granted Temple Israel’s motion for summary disposition based on the “ecclesiastical abstention doctrine,” which allows a secular court to refuse to address disputes involving religious matters. Rubinstein’s attorney, Michael Ross, appealed the decision, but the Court of Appeals returned the case to Judge Kumar to review in light of recent case law changes.

On Sept. 10, 2018, Judge Kumar dismissed the case again. Her written opinion stated that, because both parties were basing their claims on religious reasons, ruling on the case would require the court to resolve ecclesiastical questions, which it is not in a position to do. No further appeal is planned.

These lawsuits provide context as the recent national upsurge in reported cases of measles, including the outbreak this month in Oakland County and within its Jewish community, is sparking heated discussions about mandatory vaccinations and the use of non-medical waivers.

Last week, the Council of Orthodox Rabbis of Greater Detroit issued the following statement:

“In light of the recent spread of measles in our community, each and every individual is halachically obligated to take the necessary precautions to protect one’s self and family, and to prevent the spread of the disease to others.

“Due to the outbreak, the Michigan Department of Health has issued updated vaccination guidelines. Every member of the community should follow those guidelines to ensure they are fully vaccinated.”

The statement also said Halachah (Jewish law) permits institutions such as schools, day care facilities and camps to exclude unvaccinated people for the health protection of others. It also states Jewish institutions should only accept valid medical exemptions granted by physicians supportive of vaccinations.

Measles, a disease largely eradicated in the U.S. by 2000, re-emerged as a public health threat in 2015, which ramped up last year when the number of cases tripled, from 120 reported cases in 2017 to 372 cases in 2018. At press time, 314 measles cases have been confirmed in 15 states, including Michigan.

The increase in outbreaks has prompted the World Health Organization to include “vaccine hesitancy,” the refusal to immunize against vaccine-preventable diseases, among its top 10 global health threats in 2019.

The Centers for Disease Control says infected visitors from other countries caused the disease to become active again. By 2014, the number of measles cases soared to a record high of 667, prompting private schools and religious institutions nationally to review and tighten vaccination policies. This resulted in a decline in measles outbreaks, with 188 cases in 2015 and 86 in 2016.

Vaccination and the Law

The Michigan public health code requires children to be vaccinated to attend school, public or private, licensed day care centers and preschools. Children who cannot be vaccinated because of a medical reason, such as an allergy, are exempted if they have a physician-issued medical waiver.

Without a medical waiver, parents who choose not to vaccinate their children must obtain a waiver from their county health department. While all states accept medical waivers and most (47) allow religious exceptions, Michigan is one of 17 states that allows exemptions for philosophical reasons. Parents are required to watch a short video and receive information about the risks of not vaccinating before the waiver will be granted.

In 2015, when measles cases spiked, local religious institutions changed their policies to accept unvaccinated children with medical waivers only. Those with waivers based on religious or philosophical reasons were not permitted to attend, which prompted the lawsuits against Hillel and Temple Israel.

“In 2015, fewer people were getting vaccinated; it was becoming a danger,” said Hillel Head of School Steve Freedman. “Hundreds of schools revisited their policies and we were among them. We worked with the parents; we didn’t expect (unvaccinated) children to get 15 shots at once.”

Representing Temple Israel, attorney David Sims presented evidence showing how Jewish law supports mandatory vaccination. The school’s defense included a ruling by the Union for Reform Judaism as well as relevant tenets from the Torah and the Talmud.

“The Reform movement had issued a religious ruling supporting universal vaccination, and we felt bound to uphold that,” said Temple Israel Rabbi Paul Yedwab, who wrote an affidavit citing Jewish principles applicable to the exclusion of voluntarily unvaccinated children. These included the commandment to exclude lepers for the good of the community and the Jewish doctrine of self-defense, which also applies to medical situations and allows citizens to stop those who might cause them harm.

The Right To Choose

Attorney Joel Dorfman, founder of Michigan for Vaccine Choice, believes vaccination should be a personal choice, not a legal mandate. He said the current measles scare is overblown.

“It’s a benign disease for over 99 percent of the population,” he said. “It’s extremely rare to die from measles.”

Dorfman, who said he provided financial support for the Rubinsteins’ lawsuit against Temple Israel, disagreed with the outcome of that case, saying Temple Israel violated the law by refusing to accept a waiver based on religious reasons. He believes the vaccines, as well as the schedule for administering them, causes more harm than the diseases they are intended to prevent.

Meanwhile, at press time, 18 cases of measles in Metro Detroit have been confirmed, and the number of locations visited by infected individuals from March 14-21 has grown to 25. While the original exposures were in the Oak Park and Southfield area, potential exposure locations now include Berkley, Bloomfield Hills, Madison Heights, Novi, Pontiac, Royal Oak, West Bloomfield and Farmington Hills.

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