Under-Vaccinated School Exclusion Order Upheld By Appeals Court

Kentucky health department has the authority to ban under-immunized students from attending school during infectious disease outbreaks

Kentucky court room

The Kentucky Court of Appeals said a trial judge was right to refuse to stop the local health department’s efforts to control an infectious disease outbreak. 

A 3-judge panel of the appeals court said on June 28, 2019, the state of Kentucky has the authority to ban students from attending school when varicella (chickenpox) outbreaks are ongoing, reported Cincinnati.com. 

This appeals court ruling is related to a Boone Circuit Court trial judge’s refusal to impose a temporary injunction on April 2, 2019, upholding the Northern Kentucky District Health Department’s statutory charge to protect the health and welfare of the community. 

Public health authorities, such as the Northern Kentucky Health Department, consider chickenpox, which spreads quickly, a disease to be controlled. 

This Kentucky Health Department ban had called for all students without proof of immunity from chickenpox to not come to school nor participate in any extracurricular activities until 21 days after the last case of chickenpox appeared. 

Jeff Mando, with the Kentucky Health Department, said in April 2019, ‘The question is do unvaccinated students have the right to attend school, play basketball and attend other extracurricular activities in the face of an outbreak of a very serious and infectious disease?’

Chickenpox broke out in January 2019 at the Walton schools. Later, the Northern Kentucky Health Department applied incremental steps to keep the illness from spreading. 

Chickenpox is a highly contagious disease caused by the varicella-zoster virus. It can cause an itchy, blister-like rash, says the Centers for Disease Control and Prevention (CDC). 

Varicella is especially dangerous for infants and anyone who is pregnant or has a weakened immune system. 

In February 2019, students were banned from extracurricular activities, and Kunkel had to miss his last basketball game as a senior. 

When the chickenpox disease spread further, the health department imposed a ban on school attendance. Kunkel then sued, saying his religious freedom had been infringed and asking for the temporary injunction against the health department. 

Kunkel and the other students had objected to the chickenpox vaccine because it is grown in laboratory-replicated cells descended from an aborted fetus. 

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Kunkel and the students say getting the vaccine would violate their religious beliefs.

The Catholic Church ruled several years ago that Catholics could be immunized with vaccines developed in association with fetal cells. 

There are 2 varicella vaccines that are licensed in the United States, Varivax and ProQuad.

Persons 13 years of age and older without evidence of immunity to varicella should receive 2 doses of varicella vaccine 4–8 weeks apart.   

And, persons who previously received 1 dose of varicella vaccine should receive their second dose, says the CDC.   

Most pharmacies in Kentucky and Ohio offer varicella prevention vaccines. 

Contact your healthcare provider or a local Health Department with any questions about where to get the vaccine.

This appeals court ruling may have future implications, such as the ongoing hepatitis A virus (HAV) outbreak in Kentucky and Ohio.

As of June 15, 2019, the Kentucky Health Department reported 4,736 HAV cases during the current outbreak.

Vaccines are similar to prescribed medication, which can cause side effects, says the CDC.