Aclu Declines To Help Parents In Measles Case

Posted: March 02, 1991

Concluding that a child's right to be protected against disease is at least as important as the parents' free exercise of religion, the American Civil Liberties Union has declined to represent several families against the city, which is seeking court-ordered measles vaccinations for their children.

"There is certainly a free exercise of religion claim by the parents, but there is also a competing claim that parents don't have the right to martyr their children," said Deborah Levy, executive director of the Philadelphia chapter of the ACLU.

The decision, announced yesterday, left four families in the Faith Tabernacle Congregation, which shuns immunizations and other medical care, without a lawyer. Although ACLU officials said they were trying to find attorneys for them, Pastor Charles Reinert said yesterday that the parents planned to represent themselves.

The first hearings are scheduled for Monday in Family Court, which is usually closed to the public. These hearings, however, may be open if the parties agree to it, said Common Pleas Court Judge Edward Summers.

In the hearings, attorneys from the City Solicitor's Office are expected to ask the judge to order vaccinations, arguing that the parents' refusal to

allow the shots constitutes child neglect.

"It's persecution," Mr. Reinert said yesterday. "We remain committed to God, the supreme justice of the universe."

Since Feb. 9, measles has been fatal to four children who were members of the congregation, and is suspected to have caused the death of a fifth child in the First Century Gospel Church, another congregation opposed to all medical intervention. Since December, two infants unrelated to the church groups have also died of the usually benign childhood disease.

The deaths have occurred in the midst of a citywide epidemic with more than 500 measles cases reported since Jan. 1.

ACLU officials, who pride themselves on taking on unpopular and controversial causes, described their decision to forgo legal representation of the religious group as "difficult" and "painful."

But they said the fact that the disease had already proved lethal to several of the congregation's children made it difficult for the ACLU to choose between the competing interests at stake.

"The potential is that the children, in not being vaccinated, could contract measles, which has already had deadly consequences for children in this group," said Levy.

Church officials had agreed to allow city health workers, with permission

from the families, to visit homes where children had the measles. In at least four instances, the workers found children so seriously ill, they obtained court orders to remove the children to hospitals. The monitoring was not foolproof. Two measles deaths occurred after the congregation had agreed to the visits.

"We just didn't want to find ourselves taking the position that the city has to allow a child to get good and sick before it has the right to intervene," said Jim Crawford, the ACLU Philadelphia chapter's chairman of the board.

Since 1905, the U.S. Supreme Court has ruled that religious freedom does not permit parents to object to vaccinations for their children. But the nation's high court has consistently supported the right of the states to provide religious exemptions to their laws.

Pennsylvania's law, requiring preschool vaccinations for measles, German measles, polio, diphtheria, tetanus and mumps, grants such an exemption: "The provisions of this section shall not apply in the case of any child whose parent or guardian objects in writing to such immunization on religious grounds."

This exception in the law for religious preference creates a heavy burden for city attorneys to overcome in seeking court-ordered vaccinations, said ACLU attorney Stefan Presser. "The city is obligated to convince the courts that it is acting within permissible bounds of state law," he said.

But as far as the ACLU is concerned, this is one religious-freedom battle the organization has chosen to avoid.

"I don't think we've walked away from our principles here," said Levy. ''I think we've come away with a decision that is consistent with our principles, but which no one here feels completely comfortable with."

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