Bill Kunkel used to vaccinate his kids, before he read where some vaccines come from.
He is skeptical of the pharmaceutical industry’s motives and came across anti-vaxxer theories online, though they aren’t supported by science. But his main objection is about abortion. Decades ago, cells were taken from legally aborted fetuses to create some vaccines. Kunkel is Catholic. Vaccines derived from an abortion are, in his mind but not the church’s, immoral.
So he and his wife chose not to vaccinate their fourth child, Jerome — including for chickenpox.
Years later, that decision has positioned the Kunkels and their now 18-year-old son as the latest face of the nation’s anti-vaxxer movement — and the tension between individual liberties and the public good. Since Feb. 5, Jerome’s K-12 Catholic school, Assumption Academy, has been experiencing an outbreak of Varicella zoster — the virus commonly known as chickenpox.
The Northern Kentucky Health Department intervened, banning unvaccinated kids like Jerome from the classroom and athletic events until the virus is contained. And Jerome, a senior and the starting center on the school basketball team, was forced to miss their playoff game. His team lost by one point, ending the season.
Now, the Kunkels are suing, a move that has thrust religion, the Constitution and health policy into a battle over church and state.
“This is tyranny against our religion, our faith, our country,” Bill Kunkel told The Washington Post.
Jerome Kunkel has not contracted chickenpox, but officials at the Northern Kentucky Health Department say at least 32 other children have shown symptoms of the highly-contagious illness, which covers the skin in a blisterlike rash and causes fever. The Varicella virus can be especially dangerous, even deadly, for infants, pregnant women or those whose immune system is already compromised.
Over the last month, health officials have taken steps to keep the outbreak from spreading. First, they announced that unvaccinated students could not participate indefinitely in extracurricular activities, including athletic events, because the risk of exposure was too high.
Then, last Thursday, they banished unvaccinated students from school grounds altogether.
The move was “in direct response to a public health threat,” the Northern Kentucky Health Department said.
But for the Kunkels, the decision felt personal — an infringement, they say, upon their individual rights and religious freedom.
The Kunkels filed their lawsuit Thursday in the Boone County Circuit Court alleging that the Northern Kentucky Health Department had violated Jerome’s first amendment rights. Accepting the chickenpox vaccine would be “immoral, illegal and sinful,” they said, according to their Catholic beliefs. The lawsuit also alleges that the health department violated due process when officials enacted the extracurricular and school attendance bans without declaring an official emergency, which would have triggered the involvement of the state legislature.
The lawsuit alleges that health department officials showed particular animus to the Kunkel family during one-on-one meetings, leading the Kunkels to believe the bans were the result of religious discrimination.
The Kunkels’ attorney, Chris Wiest, said he has been approached by more than a dozen other families who want their children to be added as plaintiffs in the lawsuit. Wiest said many of the children at Assumption Academy have not been vaccinated for chickenpox.
“This is a gift-wrapped establishment clause case,” Wiest said.
Officials from Assumption Academy and Our Lady of the Assumption Church did not respond to requests for comment from The Washington Post.
The health department has issued two statements acknowledging the lawsuit and denying its claims, but declined an interview request because of the pending litigation.
The bans are “consistent with this agency’s statutory charge to protect the public health,” officials said in one statement. The agency also shared copies of three informational letters sent to parents and school staff — on Feb. 5, Feb. 21 and March 14 — to combat what they consider a misleading narrative that Wiest and other community members had shared on social media.
“It is unfortunate when social media is used as a weapon for misinformation to advance litigation agendas and to undermine our mission to protect public health,” the department statement said.
The Kentucky statute that governs state health departments allows health officials to take action or adopt rules that could prevent the spread or introduction of infectious diseases, including enforcing quarantines “as it deems proper.”
The statute also provides guidelines for navigating public health concerns when religion is a factor, saying that Kentucky law cannot be “construed to require the immunization of any child whose parents are opposed to medical immunization against disease, and who object by a written sworn statement to the immunization of such child on religious grounds.”
What’s at issue is whether health officials overstepped those statutory duties in their pursuit of protecting the public.
Since 1905, when the Supreme Court ruled on Jacobson v. Massachusetts, it has been widely understood that states are legally allowed to require vaccination in matters of public health. The court decided that police powers granted by the Constitution trumped an individual’s rights when Massachusetts required a man named Henning Jacobson to get a vaccine for smallpox, a disease eradicated globally in 1977 after a worldwide vaccination campaign. There is legal precedent upholding health officials use of police powers in schools. In Phillips v. City of New York, the Second Circuit Court of Appeals cited the Jacobson v. Massachusetts decision when it ruled that the state’s regulation permitting the removal of unvaccinated students from school during a disease outbreak were constitutional. In that 2015 case, the plaintiffs’ children were forced to stay home after a classmate contracted chickenpox.
“Schools can prohibit an unvaccinated child, who is more susceptible to acquiring highly infectious vaccine-preventable illness and more likely to become a carrier and vector for it, from coming to school until the danger subsides,” scholars Tong Yang and Ross Silverman wrote in a New England Journal of Medicine article published in 2015. “Such measures, coupled with ready availability of vaccines, reduce the potential spread of serious disease in a vulnerable and tightly packed community.”
Elizabeth Reiner Platt, director of the Public Rights/Private Conscience Project at Columbia Law School, reviewed the lawsuit at The Post’s request and wrote in an email that she believed the lawsuit could succeed only if “the family can demonstrate that the state was acting not to protect the health and safety of schoolchildren, but out of animus against the family’s religious beliefs.”
“This will be a very challenging claim to make,” Platt said, “and the family’s argument that an email from the health department stating that its ‘primary concern is preventing the spread of this illness to the public’ constitutes ‘remarkable’ evidence of discriminatory animus is unpersuasive.”
Despite that precedent, the Kunkels’ lawyer believes they have a case. “This is a gift-wrapped establishment clause case,” Wiest said.
Bill Kunkel said he wants the school and health officials to “look out” for the well-being of the community.
“But doggone,” he said, “they don’t have to be tyrants about what they want to do.”
The Kunkels began seeking legal recourse last month, pleading with the school and with health officials to end the ban so Jerome could finish his senior season, Kunkel said. But health officials balked.
On March 14, the Kunkels filed their lawsuit — and hours later the health department issued its last letter, which said that students without proof of vaccination or immunity against the Varicella virus were not permitted to come to school until 21 days after the onset of rash for the last ill child or staff member.
Wiest, the lawyer, said he has since amended their lawsuit, claiming the final letter was “at the heart of a first amendment retaliation claim.”
A hearing on the lawsuit is scheduled for April 1, when a judge will rule on an injunction filed by the Kunkels’ lawyer asking to end the bans.
Many of the parents at Assumption, including the Kunkels, attribute their moral opposition of vaccines with fetal tissue origin to Catholic doctrine. But the church ruled nearly 15 years ago that Catholics are morally free to use those vaccines when there’s a threat to public health. Catholic leaders have also encouraged those uncomfortable with the vaccine origin to encourage drug manufacturers to create a version of the vaccine not derived from aborted fetal cells.
The Varicella vaccine, specifically, is derived from the cell lines of two fetuses that were electively aborted in the 1960s. “There are no further abortions that have occurred to continue these cell lines,” said Josh Williams, an assistant professor of pediatrics at the University of Colorado, Denver who studies the influence of religion on vaccine decisions.
“This highlights the need for us to continue to partner with and engage with religious leaders around the conversation about vaccinations,” Williams said. “Clergy can be really powerful advocates for vaccinations.”
Kunkel said he is aware of the Church’s ruling on vaccines derived from fetal tissue.
“That doesn’t mean nothing to me,” Bill Kunkel said. “I follow the laws of the Church, and I know what’s right and wrong.”
Abortion, he said, is a moral absolute.
The school canceled class on Friday and Monday and avoided interacting with reporters during a parent meeting last week about the outbreak chaos.
It’s unclear if vaccinated students will return to school this week and how unvaccinated kids will go about their studies during the quarantine.
Jerome Kunkel said he’s not sure how he’ll fill his time. He cleaned out his car, he said, and will likely begin practicing baseball with a teammate also kept from school by the ban. Three weeks is too short a time span to get a job, the high school student said. And he’s nervous about falling behind in class.
“He’s being penalized because he’s a healthy child,” Bill Kunkel said. “He may not ever get chickenpox.”
Kunkel said he attended “chickenpox parties” as a child and took his own children to one at his brother’s house, with the intention of exposing children to the virus all at once.
But health officials strongly urge parents not to do this because the virus can cause unpredictable and severe reactions. The Northern Kentucky Health Department recommend the vaccine in each of its letters to parents at Assumption Academy.
Before the Varicella vaccine was created, about 4 million people each year were infected in the United States, according to the Children’s Hospital of Philadelphia. Now, just 12,000 people contract the infection — about a 99 percent decrease.
Video: Despite the massive evidence, the anti-vaccination movement is gaining strength. Scientists are concerned measles could return even though it was ‘eliminated’ in the U.S. 20 years ago. (Luis Velarde/The Washington Post)