By Anne Saker
In a ruling involving chickenpox at two small Roman Catholic schools in Boone County, the Kentucky Court of Appeals said a trial judge was right to refuse to stop the local health department’s efforts to control the outbreak.
A three-judge panel of the appeals court said the state has the authority to ban students from attending school, including religious institutions, when an infectious disease is spreading among students.
The ruling, released Friday, only concerned the trial judge’s refusal to impose a temporary injunction on behalf of Jerome Kunkel, 18, and about two dozen other students at Our Lady of the Sacred Heart School and Assumption Academy in Walton.
Last school year, 82% of the student body received religious exemptions from vaccination. The exemption form warns parents their children can be barred from school if the health department is trying to control the spread of illness.
Though itchy and unpleasant, chickenpox is mild as diseases go but can be deadly to children, the elderly, pregnant women and those with compromised immune systems. Public health authorities such as the Northern Kentucky Health Department consider chickenpox, which spreads quickly, a disease to be controlled.
Kunkel and the other students object to the chickenpox vaccine because it is grown in laboratory-replicated cells descended from a fetus aborted in London in 1966.
The Vatican allows Catholics to get the vaccine. Kunkel and the students say getting the vaccine would violate their religious beliefs. Their community of Our Lady of the Sacred Heart Church in Walton, which runs the two schools, belongs to the Society of St. Pius X, a conservative sect that venerates the Latin Mass and rejects Vatican II.
Chickenpox broke out in January at the Walton schools. The Northern Kentucky Health Department applied incremental steps to keep the illness from spreading. In February, students were banned from extracurricular activities, and Kunkel had to miss his last basketball game as a senior.
When the disease spread further, the health department imposed a ban on school attendance. The same day, Kunkel sued, saying his religious freedom had been infringed and asking for the temporary injunction against the health department.
In April, Boone County Circuit Judge James R. Schrand denied the injunction, saying the health department had acted within its authority to control disease. Kunkel, joined by the other students, took the matter to the state appeals court. In May, Kunkel came down with chickenpox.
Friday, the appeals court upheld Schrand. “We cannot discern an abuse of discretion by the trial court in finding (that Kunkel and the other students) have not shown a substantial likelihood of success on the merits of their First Amendment retaliation claim.”
Kunkel’s lawyer Christopher Wiest of Cincinnati could not be reached Sunday for comment.
Lawyer Jeff Mando of Covington, who represented the Northern Kentucky Health Department, said Sunday the appeals court ruling “underscores the health department’s authority to take reasonable measures to prevent the spread of infectious diseases and protect public health.
“The court also recognizes that the exercise of religious freedom has its limits when it threatens the safety and health of others in the community,” Mando said.
