NE Attorney General Mike Hilgers
Nebraska Attorney General Mike Hilgers is leading a 16-state effort asking the U.S. Supreme Court to hear a West Virginia family’s religious challenge to vaccination requirements for their daughter’s online public schooling.
Hilgers’ office announced the friend-of-the-court brief Friday. The filing supports Krystle and Anthony Perry, whose daughter was disenrolled from an Upshur County public virtual school for not being fully vaccinated.
According to Nebraska’s brief, the parents object on Christian religious grounds to vaccines developed using fetal cells derived from abortions. The coalition argues that conditioning their daughter’s access to online public education on vaccination improperly burdens the family’s religious exercise.
“The government can intrude upon this right only in the most pressing circumstances,” Hilgers said in a statement.
The brief argues those circumstances do not exist when a student takes classes entirely from home.
Family initially won temporary relief
The case, Perry v. Marteney, reached the Supreme Court after a divided federal appeals court reversed an order granting the family temporary relief.
The trial court had allowed the daughter to re-enroll while the litigation proceeded. But the Fourth U.S. Circuit Court of Appeals ruled April 8 that the vaccination law was a neutral, generally applicable public-health measure. The majority concluded that allowing medical exemptions did not constitutionally require religious exemptions.
The dissent emphasized the child’s at-home schooling and exemptions available for other forms of home education.
Nebraska’s brief argues that states can protect children from infectious diseases while accommodating religious objections, including through temporary exclusions during outbreaks.
Nebraska already permits religious exemptions
Nebraska law already allows students to obtain school immunization exemptions through an affidavit stating that vaccination conflicts with their religious beliefs. It also provides for medical exemptions.
The filing does not change those requirements.
The coalition also cites a case involving Lincoln Public Schools to argue that exemptions can coexist with measures to control outbreaks.
In Maack v. School District of Lincoln, the Nebraska Supreme Court upheld the temporary exclusion of two unvaccinated Lincoln East students during a measles outbreak. The outbreak occurred in May 1989; the court issued its decision in 1992.
Justices have not accepted the case
The coalition’s filing asks the Supreme Court to review the dispute. It is an argument supporting the family’s petition, rather than a court ruling.
The Supreme Court docket lists the case as No. 26-319. The school officials’ response is due November 12. The court has not agreed to hear the appeal.
Joining Nebraska’s brief are Alabama, Alaska, Arkansas, Florida, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, South Carolina, South Dakota, Utah and West Virginia.