Legal Commentary

Court Upholds Decision Giving Parent Authority Over Child?s Medical Care Because That Parent Would Immunize the Child

By Eugene Volokh

The decision seems correct to me, because it is in the child?s best interests. And while I think that there should be serious First Amendment constraints on decisions based on a parent?s speech, I think courts may and should consider each parent?s non-speech conduct that may seriously affect the physical health of the child. And that is so even though the conduct might be religiously motivated, so long as the court isn?t discriminating against the parent based on religion. Even if heightened scrutiny is called for under a state Religious Freedom Restoration Act (Florida has one, but it didn?t seem to have been argued to the court) or under the Smith/Yoder ?hybrid rights? theory, I think such decisions would be narrowly tailored to the compelling government interest in protecting the child against infectious diseases.

In any case, here?s the opinion, Winters v. Brown (Fla. Ct. App), decided today:

[Mother] appeals the court?s award of ultimate responsibility to [Father] for their minor child?s health care, and specifically, their minor child?s vaccinations. Father cross appeals the court?s award of substantial timesharing to Mother. We affirm both provisions of the trial court?s order.

While the parties were never married, Mother and Father have a minor child together. When differing religious beliefs resulted in disagreement over the minor child?s health care, Father petitioned the court to establish paternity and each party requested ultimate responsibility over health care, religious, and educational issues. Mother is a chiropractor and a proponent of holistic medicine. A tenet of her religious beliefs is that God has provided the human body with an innate immune system that enables the body to heal itself. Mother believes that anything introduced into the body to prevent disease or treat illness is against the will of God. Specifically, Mother opposes vaccinations. Accordingly, pursuant to section 1003.22(5)(a), Florida Statutes (2007), Mother obtained an exemption for the minor child from the immunization requirement to attend public school.

Conversely, Father desires that the minor child receive traditional medical care, including well baby exams, blood draws, urinalysis, and vaccinations. The court held three hearings to determine responsibility for the minor child?s health care where multiple experts testified concerning the effectiveness of vaccinations. Mother also testified regarding her religious beliefs, medical care of the minor child, and their parent-child relationship.

A trial court?s determination as to which parent is to have the ultimate authority over a minor child?s immunizations will be upheld if it is supported by competent, substantial evidence. An appellate court will not substitute its judgment for that of the trial court. While courts have consistently overturned restrictions on exposing a child to a parent?s religious beliefs and practices, they make an exception where there is ?a clear, affirmative showing that these religious activities will be harmful to the child.? In the instant case, the court determined that

The issue ... is not one of simply exposing the minor child to the mother?s religious beliefs and practices, it involves an issue that could cause physical and serious harm to the minor child. When parents cannot agree, the court is called upon to break the impasse, and that decision must be made in the best interests of the minor child.

Following conflicting expert testimony [1], the court determined that it was in the best interests of the minor child to award Father ultimate responsibility to make decisions regarding the minor child?s health care and vaccinations. We affirm the trial court?s decision because it was supported by competent, substantial evidence....

In the instant case, the trial court considered several factors in section 61.13(3), Florida Statutes. Ultimately, the court determined that ?[a]fter consideration of all these factors and the findings by the court, the court hereby determines and orders that the mother shall have the substantial timesharing with the minor child.? As the court?s determination was supported by substantial, competent evidence in the record, we affirm the trial court?s award of substantial timesharing to Mother.

[Footnote 1] Dr. Mobeen Rathore testified:

Vaccinations are very safe, very effective. Children who are not vaccinated are at increased risk for problems with infections. Some of these diseases that can be sort of postponed, if you will, can have a much worse outcome.... [C]hildren who do not get vaccinated not only are at increased risk themselves, studies have indicated that they put other children at risk in the schools and where they play.

Dr. Kristen Walker testified that ?generally it is better to do [vaccines] on schedule because the antibody titers and the strength of the immunity to that disease would be better.? Conversely, Dr. Lawrence Palevsky testified that ?one in five children in this country ... are suffering from some form of neurodevelopmental disorder, so we have to question whether the vaccines play a role in bringing toxic materials into the brain or even impairing the protection that children have with the blood-brain barrier.? He also concluded that ?it?s less harmful for a child not to be vaccinated than it is for a child to be vaccinated.? (emphasis added.)

Full post as published by The Volokh Conspiracy on January 26, 2011 (boomark / email).