Refusing treatment of a child for no vaccination
A form for the give the physician that refuses to treat your child for a lack of vaccination
Alan G. Phillips, J.D.
Attorney and Counselor at Law
P.O. Box 3473
Chapel Hill, NC 27515-3473
February 29, 2012
United States of America
Re: Legal and Ethical Ramifications of Refusing to Treat Unvaccinated Children
Physicians who refuse to treat unvaccinated children due to a parent’s exercise of
a lawful exemption to immunizations may be violating the parent’s Constitutional rights
and state ethical rules, and risking liability and/or sanctions accordingly.1, 2
First, if you refuse to treat a child for the sole reason that a parent is exercising a
vaccine religious exemption, you may be violating the parent’s Constitutional rights.
State vaccine religious exemption laws are backed by the First Amendment’s “free
exercise” Constitutional protection. Even private practices may be at risk, if they accept
Medicaid and Medicare, as private entities with substantial ties to government may be
considered “state actors” for purposes of application of the Constitution directly to those
private entities.3 State constitutional religious freedom rights may be violated as well.
Religious freedom is not a trivial matter. Federal courts in vaccine religious
exemption cases have held that the “loss of First Amendment Freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury”4 and have
awarded money damages for the loss of First Amendment rights.5 Thus, pediatricians
should tread cautiously where vaccine religious exemptions are concerned.
Ethical concerns apply to the exercise of both religious and philosophical
exemptions. For example, refusing to treat exempt children:
* Contradicts medical association recommendations;6
* Punishes innocent children for their parents’ decision, and potentially puts those
innocent children at risk from the resulting loss of medical care; and
* Punishes law-abiding parents for exercising a legal right, and without good cause,
as the lawful exercise of a vaccine exemption, by both legislative presumption
and CDC statistics and accepted medical theory, does not create a significant
health risk-e.g., non-immune vaccinated kids greatly outnumber exempt kids.7
Finally, this refusal policy raises serious professionalism concerns. A threat of
refusal to treat is a discriminatory coercive act; refusing to treat an act of authoritarian
punishment. In short, these behaviors amount to professional bullying. Worse, they are
completely misplaced. State legislatures would not have enacted exemption laws if their
exercise would cause a significant risk to anyone. If you disagree, the proper target for
your concern is the state legislature-not parents exercising a right granted by lawmakers
who have already determined that the exercise of exemptions poses no significant risks.
A related misunderstanding concerns the fact that state exemption laws generally
allow one parent to exercise the exemption, without requiring the consent of the other
parent. In contrast, vaccinating a child usually requires both parents’ consent, since
parents generally share decision-making authority over their children equally unless a law
or court order says otherwise. Again, those who object may address their concerns with
their state representatives, since legislators-not parents-make the laws.
To be clear, an unvaccinated child whose parents are not exercising a lawful
exemption may pose a legitimate liability risk, as those parents may not be in compliance
with the law. In this case, you may be justified in requiring a waiver from the parents, or
in temporarily refusing to treat a child until the parents vaccinate or a parent exercises an
exemption. Of course, ethics would require that any child needing immediate medical
attention be treated promptly, regardless of the child’s vaccination status.
For the above reasons, the policy of refusing to treat legally exempt, unvaccinated
children is improper and should cease immediately. But this is also a matter of common
sense. Bullying tactics will not change parents’ minds, but it will generate resentment that
will only add to the ongoing erosion of public confidence in the medical profession.
Mature, intelligent discourse on vaccine concerns may create mutual respect and
understanding of contrasting concerns. Alternative and complementary medicine has
grown steadily for decades now. Medical doctors would serve themselves and others
better by tolerating alternative vaccine views, as they are clearly here to stay.8
N.C. Bar No. 30436
1 This letter is for educational purposes only, and not intended to constitute medical or legal advice.
2 As voluminous information exists elsewhere substantiating parents’ exemption choices, this letter will focus
instead on legal and ethical considerations only.
3 See, e.g., Opinion No. GA-0420, April 6, 2006, Attorney General of Texas, Gregg Abbott, stating that
private schools in Texas do not have to accept religious exemptions unless the school accepts state funds,
4 Berg v. Glen Cove City School Dist., 853 F. Supp. 651, 654 (E.D.N.Y. 1994) (quoting Elrod v. Burns, 427
U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976)).
5 Lewis v. Sobel, 710 F. Supp. 506, 517 (S.D.N.Y. 1989).
6 More Doctors ‘Fire’ Vaccine Refusers, The Wall Street Journal, February 15, 2012.
7 E.g., 5 - 15% of vaccinated children are not immune, while exemption rates typically run from 1 - 2.5%.
See “Vaccine Exemptions: Do They Really Put Others at Risk?”, Natural News, February 21, 2012, at
8 See, e.g., Thomson Reuters-NPR Health Poll Finds One in Four Americans Believe Vaccines are Unsafe,
September 30, 2011, http://www.prnewswire.com/news-releases/thomson-reuters-npr-health-poll-finds-onein-
four-americans-believe-vaccines-are-unsafe-130837193.html, Majority Support Parental Vaccination
Choice According To New Harris Poll, PR Newswire, May 24, 2010, http://www.prnewswire.com/newsreleases/
majority-support-parental-vaccination-choice-according-to-new-harris-poll-94723629.html, and 52%
Concerned About Safety of Vaccines, Rasmussen Reports, August 20, 2010,