Several parents today sued Gov. Baker over his order requiring all students under 30 to get flu shots or risk getting kicked out of school, saying it infringes on their First Amendment rights to freedom of religion and their rights to raise their children as they see fit.
Besides, the parents add in their suit, filed in US District Court in Boston, the flu shot does nothing to prevent Covid-19 and might actually increase the risk of contracting Covid-19, by weakening their children’s immune systems. Also, flu shots often don’t work, kids rarely need to be hospitalized for the flu, so shots won’t free up beds needed for Covid-19 patients and, by the way, Covid-9 isn’t all that serious for kids, anyway. They also point to the fact that the order exempts the home-schooled, but requires it even for student who would normally be in school but who are also now learning at home.
In their complaint, the parents do not specify their religions or what specific religious beliefs of theirs that the state’s August flu-shot mandate violates.
In addition to their religious issues, the parents also cite what they say is a Massachusetts constitutional right to education – that started with the way Boston Latin School was started in 1635 and the legislature then required schooling for all children in 1642. By issuing the order by “administrative fiat” without legislative consideration and by essentially forcing parents to choose between a shot and public education, Baker is depriving them of their Fourteenth Amendment right to due process, they allege, adding the fact the order only applies to students under 30 is unequal protection under the law because it doesn’t apply to people over 30.
And then there’s the Constitutional protection of privacy, allegedly violated by intruding in the relationship between parents and their children, they say.
Parents, and not the Governor or the Department of Public Health, are in the best position to determine whether or not their minor children should receive a medically unnecessary vaccination in order to attend school. … Parents have the responsibility and authority to make medical decisions on behalf of their children. This includes the right to refuse or discontinue treatments, even those that may be life-sustaining.
The lawsuit acknowledges the state will probably try to pull out some decision like 1905’s Jacobson v. Massachusetts, in which the Supreme Court upheld a fine levied against a Cambridge minister who refused a smallpox vaccination for himself and his son in the midst of a smallpox epidemic, as a legal underpinning for Baker’s order.
True, in its ruling, the court said that:
[I[n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.
But, the complaint continues, the flu and Covid-19 are no smallpox:
Jacobson involved compulsory vaccination in the midst of a smallpox epidemic when there was no other less coercive means available to staunch the outbreak. In this situation, the court believed at that time that a vaccination was a medical necessity to combat the disease. Compare this to vaccinations for sexually transmitted diseases like HPV- a compulsory vaccination is not a medical necessity because individuals can protect themselves through some combination of sexual knowledge, disease screening, safe sex, and abstinence. Likewise, a compulsory flu vaccine is also not a medical necessity, nor has the flu vaccine, which has been around for decades, ever been considered medically necessary.
The ten parents, from Medford to Spencer, are represented by a lawyer from Lynn, Thomas O. Mason, and two lawyers from Florida, one of whom has been active in fighting his county’s Covid-19 mask ordinance, the other of whom specializes in First Amendment issues, although more typically those involving strip clubs.