A group of parents claim a form required to request a vaccination exemption for their children forces them to participate in compelled speech.
ST. LOUIS (CN) — A group of Missouri parents told an Eighth Circuit panel on Tuesday that the state requires them to go through a forced indoctrination session to religiously opt out of vaccines required for their children to attend school.
“This is a hybrid rights case,” plaintiffs’ attorney Linus Baker told the three-judge panel via a teleconference hearing. “It has many fundamental rights. These parents cannot raise these children the way they want, they cannot provide informed consent, the children’s bodily integrity is violated. The parents have to violate their own religious beliefs, and they have to speak, they have to communicate, and all that together says that neutral generally acceptable law does not apply.”
The plaintiffs are challenging the state’s “Movax Law,” which requires all children attending school to have a certain set of vaccines. They believe the law requires parents to involuntarily consent to a set of vaccines over a period of years with the risk of permanent harm to their children.
The parents claim the law violates their religious rights, free speech, their children’s due process rights to bodily integrity, their right to parental consent, equal protection, and the right to an education.
According to their brief, the parents argue that in order to exempt their children from getting vaccinated they must fill out a document called, “Form 11,” which forces them to speak their private religious objection to a school administrator. They also must get the form at a local health department where they say they are subjected to efforts to dissuade them from their religious beliefs.
Judge David Stras, a Donald Trump appointee, questioned whether some of the plaintiffs actually filled out Form 11. Baker responded that it wasn’t clear according to the petition if they had.
Stras pressed Baker on the burden to show standing regarding harms. The judge pointed out that he saw two types of harms — a past harm in being forced to fill out Form 11 and a future harm with the potential expulsion of students without proper vaccination if Form 11 wasn’t completed.
Baker pointed out that one of his client families had their children expelled.
“All three children were denied an education over this and they’ve been deprived of their education now for several months,” Baker said.
The plaintiffs’ attorney said the other families were harmed because of the unconstitutional religious requirement forcing them to participate in compelled speech. Baker said they would have to do it over and over again every school year.
Missouri Deputy Solicitor General Jesus Osete, representing the defendants, refuted Baker’s claim that filling out Form 11 would be a regular occurrence.
“In terms of them having to do this every year or every school year, [filling out Form 11] is one time per child,” Osete said.
The appeals court panel questioned Baker on previous case precedent, including decisions upholding the dissemination of informational brochures to women seeking an abortion.
Baker said Form 11 is much different than a brochure.
“There’s no requirement that she has to reconvey that information herself to somebody else,” Baker told the panel. “That would be compelled speech.”
“This form that they require these parents to take, it’s their communication to the school administrator,” he continued. “They require that message and that message, whatever it says, is the message they don’t want to be associated with.”
The parents sued Missouri Department of Health & Senior Services Director Randall W. Williams, Attorney General Eric Schmitt, Kansas City Health Director Dr. Rex Archer, Jackson County Health Director Bridgette Casey and two school districts in 2019 in two different cases that were eventually consolidated.
A Western District of Missouri judge dismissed the case in 2020, finding that the courts have long recognized vaccine requirements with or without religious exemptions, as well as the state’s freedom to advocate for vaccines.
That decision prompted the appeal to the Eighth Circuit.
Osete was very brief in his argument, using about half of his allotted 20-minute time limit.
“Form 11 does not require Mr. Baker to affirm or otherwise agree with the state’s pro vaccination message on that form,” Osete told the court. “Indeed, when he fills out that form or any parent fills out that form, they’re effectively rejecting the state’s pro-vaccination message, which is consistent with the First Amendment.”
The panel questions Osete whether the law allows just one parent to object to vaccination on religious grounds. Osete said the law did allow just one parent to object.
The panel also questioned why Form 11 was no longer available on the state’s website for download.
“Anyone who desires to receive the Form 11 can do it through the mail, through a 1-800 toll free number,” Osete answered. “There are multiple avenues to try to apply that form that frankly from this petition, the plaintiffs have not exhausted to retrieve this form.”
In its brief, Missouri argued that the Movax law and its religious exemption comply with the U.S. Constitution and the lower court was correct in dismissing the case.
The state claimed Form 11 is a simple one-page form that informed parents of the benefits of vaccination. Parents just need to fill out the form and then sign a box on it stating that vaccination conflicts with their religious beliefs.
Missouri says there is no limit to any particular religion, and it does not require parents to agree with the state’s explanation of vaccination benefits. Due to these factors, the state argues that Form 11 does not compel speech from parents, restrain their speech or infringe on any other constitutional rights.
“On its face Form 11 is a neutral and generally applicable law,” Osete told the panel. “It does not favor one religion over another. It is not hostile to religion.”
George W. Bush appointees Raymond W. Gruender and Duane Benton joined Stras on the panel. The court took the arguments under advisement and there is no timetable for a decision.