Do I Have The Right To Say No?

by Travis Mateer

On August 27th, in the comment section of this post, I asked Ward 1 candidate J. Kevin Hunt if he supported my right to say no to a vaccine. Since posing that question, candidate Hunt has commented several times on other posts, but as of this writing, my straightforward question has been ignored.

Today I’m going to expand my question for Mr. Hunt based on a story that’s making the rounds: if I had partial custody of my children due to divorce, and made the choice to NOT get a vaccine, should I be denied custody of my children by a judge?

I can’t believe this question correlates to a real-life scenario, but that is what a woman in Chicago is being told by a judge after he asked her about her vaccine status. From the link:

A mother in Chicago has criticized a judge who she says stripped her of visitation rights because she was not vaccinated against COVID-19.

In what could be the first case of its kind, a judge at Cook County’s Daily Center said Rebecca Firlit cannot see her 11-year-old son until she has received the shot, reported FOX News 32.

From what I’ve read about this case, the judge asked this question without any prompting from the other party in the hearing (the father), though the father agrees with the judge’s order.

How is this even remotely ok? Here’s more from this insanity:

During the hearing, Cook County Judge James Shapiro reportedly asked Firlit whether she had been vaccinated yet. She said she told the judge she hadn’t because she has suffered bad reactions from other vaccines she had in the past.

In an unprecedented move, Shapiro then ordered Firlit be stripped of all parenting time with her son until she gets vaccinated, said the report.

This story seems like a brazen trial balloon to gauge public reaction over a court-ordered medical intervention.

And, for me, it’s working, because if a candidate like Mr. Hunt can’t denounce the madness of exploiting a mother’s ability to see her own 11 year old kid in order to coerce her into getting penetrated with a needle, then I don’t want him anywhere near developing local policies as an elected official.

So, I’ll ask J. Kevin Hunt the same question I asked him last week: do you support my right to say NO to this vaccine?

I’m waiting…

UPDATE: The judge changed course. This is called winning.

About Travis Mateer

I'm an artist and citizen journalist living and writing in Montana. You can contact me here: willskink at yahoo dot com
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6 Responses to Do I Have The Right To Say No?

  1. It’s odd that you’re so curious how I, as a candidate for Missoula City Council, feel about a parenting time case in Cook County, Illinois. I know nothing about the case beyond what you’ve written. Hearings on such cases take hours and sometimes days. I wasn’t there. I don’t have any facts. Is the mother in an occupation, or avocation, bringing her into close contact with others, particularly indoors? Is she down at a small, crowded tavern shooting pool and throwing darts in the evenings? At age 11, the child is at risk of disease, hospitalization and death from the Delta variant.
    A parent’s vaccination status isn’t off limits as a factor in a parenting time case. Whether that factor is being applied reasonably in this case, I can’t say. Does the mother have a medical condition precluding her from being vaccinated, or is this a matter of “you can’t make me”?

    As a general proposition, there is nothing shocking or unusual about restricting the parenting time of a mother with her 11-year-old child, based upon the mother’s failure to be vaccinated during a pandemic in which 187,175 child COVID-19 infections were reported in the U.S. last week, one in 50 of them led to hospitalization, twenty children per week die of COVID-19, and all but 7 states have had child COVID-19 deaths.

    The Due Process Clause of the Fourteenth Amendment does indeed protect the right of parents to make fundamental decisions about the care of their children. Pierce v. Society of Sisters, 268 U.S. 510 (1925). But that right is not absolute, and a state has the constitutional power to prevent parental actions that endanger the child:

    “While a constitutional liberty interest in the maintenance of the familial relationship exists, this right is not absolute.” Woodrum v. Woodward County, 866 F.2d 1121, 1125 (9th Cir 1989). The interest of the parents must be balanced against the interests of the state in protecting the child. Id. The Fourteenth Amendment, then, “guarantees that parents [rights’ to their children will not be interfered with] without due process of law except in emergencies.” Mabe v. San Bernadino Co. Dept. of Public Social Services, 237 F.3d 1101, 1107 (9th Cir. 2001); Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35, 69 L. Ed. 1070, 45 S. Ct. 571 (1925); Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); Campbell v. Burt, 141 F.3d 927 (9th Cir. 1998); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1996); Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir. 1991); Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1988); accord, J.B., 127 F.3d at 927; Croft, 103 F.3d 1123, 1125; Hurlman v. Rice, 927 F.2d 74,
    79 (2d Cir. 1991); Duchesne v. Sugarman, 566 F.2d 817, 824 (2d Cir. 1977).

    The mother in the case you reference has been provided due process of law, in that she had a hearing before a court prior to her parenting time being restructed. Whether the procedures followed in that hearing comported with Due Process, who are you or I to say? We were not there!

    As for whether you have a right to refuse vaccination, that depends on the magnitude of the risk, and the gravity of the harm, posed by the pathogen and by the lack of vaccination, and also upon context, i.e., whether you quarantine yourself, or engage in the full panoply of social activities, as if there were no pandemic. I’d cite to this statement of the extent of your rights as expounded by libertarian philosopher John Stuart Mill:

    “Your right to swing your arms ends just where the other man’s nose begins.” John Stuart Mill, On Liberty, 43 Great Books of the Western World 271 (Robert Maynard Hutchins ed., 1952). Mill continued: “[T]he only purpose for which power can rightfully be exercised over any member of a civilised community, against his will, is to prevent harm to others.”

    In the case of a virus, the distance between your “arm” and another person’s nose is much farther. Given that you also feel that you have an absolute right not to wear a mask, it is yet farther.

    Here is what our courts have said in this context:

    The Supreme Court has held that pursuant to the 10th Amendment, the states (and their subdivisions to the extent permitted by a state’s laws) have police powers to mandate vaccination. That ruling has been upheld in subsequent cases and lower federal courts have consistently come to the same conclusion. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (the state’s compulsory vaccination law did not violate the Fourteenth Amendment); Compagnie Francoise De Navigation a Vapcur v. Bd. Of Health of State of La., 86 U.S. 380 (1902) (Louisiana law requiring involuntary quarantine during a yellow fever outbreak was a reasonable exercise of state police power); Zucht v. King, 260 U.S. 174, 176 (1922) (stating that it is “settled that it is within the police power of a state to provide for compulsory vaccination”); Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds” and “[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death”); Phillips v. City of New York, 775 F.3d 538, 542-43 (2d Cir. 2015) (per curiam) (rejecting parents’ challenge to New York state requirement that all children be vaccinated in order to attend public school; “New York could constitutionally require that all children be vaccinated in order to attend public school. New York law goes beyond what the Constitution requires by allowing an exemption for parents with genuine and sincere religious beliefs. Because the State could bar [the] . . . children from school altogether, a fortiori, the State’s more limited exclusion during an outbreak of a vaccine-preventable disease is clearly constitutional.”); Whitlow v. California, 203 F. Supp. 3d 1079, 1091 (S.D. Cal. 2016) (“conditioning school enrollment on vaccination has long been accepted by the courts as a permissible way for States to innoculate large numbers of young people and prevent the spread of contagious diseases”); Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017) (religious plaintiff had no constitutional right to an exemption from mandatory vaccination law for public school students, though state provided one); Workman v. Mingo Cnty. Bd. of Educ., 419 F. Appx. 348, 355-56 (4th Cir. 2011); W.D. v. Rockland Cnty., ___ F. Supp.3d ___, 2021 U.S. Dist. LEXIS 33515, 74
    (S.D.N.Y. Feb. 22, 2021); Doe v. Zucker, ___ F. Supp.3d ___, 2021 U.S. Dist. LEXIS 28937, 111 (N.D.N.Y. Feb. 17, 2021); Connecticut Citizens Defense League, Inc. v. Lamont, 465 F. Supp.3d 56, 72 (D. Conn. 2020); Middleton v. Pan, 2016 U.S. Dist. LEXIS 197627, 20 (C.D. Cal. Dec. 15, 2016); George v. Kankakee Cmty. Coll., 2014 U.S. Dist. LEXIS 161379, 8-9 (C.D. Ill. Oct. 27, 2014), recommendation adopted, 2014 U.S. Dist. LEXIS 160737, 1-2; Boone v. Boozman, 217 F. Supp.2d 938, 954 (E.D. Ark. 2002).

    Similarly, there is no fundamental constitutional right to not wear a mask. Kelly v. ImagineIF Library Entity, 2021 U.S. Dist. LEXIS 111958, 8 (D. Mont. June 15, 2021); Whitfield v. Cuyahoga Cnty. Pub. Library Found.,2021 U.S. Dist. LEXIS 92944, 4 (N.D. Ohio May 17, 2021); Denis v. Ige, ___ F. Supp.3d ___, 2021 U.S. Dist. LEXIS 91037, 14 (D. Haw. May 12, 2021); W.S. by Sonderman v. Ragsdale, ___ F. Supp.3d ___, 2021 U.S. Dist. LEXIS 98185, 5 (N.D. Ga. May 12, 2021); Forbes v. City of San Diego, 2021 U.S. Dist. LEXIS 41687, 11 (S.D. Cal. Mar. 4, 2021); Stewart v. Justice, ___ F. Supp.3d ___, 2021 U.S. Dist. LEXIS 24664, 20 (S.D. W. Va. Feb. 9, 2021); Oakes v. Collier Cnty., 2021 U.S. Dist. LEXIS 15174, 4 (M.D. Fla. Jan. 27, 2021); Shelton v. City of Springfield, 497 F. Supp.3d 408, 414 (W.D. Miss. 2020); see also Ryan v. Cnty. of DuPage, 45 F.3d 1090, 1092 (7th Cir. 1995) (no constitutional right to wear a mask); United States v. Berglund, 2021 U.S. Dist. LEXIS 78476, 2 (D. Minn. Apr. 23, 2021) (“Courts have repeatedly found that requiring participants at trial to wear face masks due to the Covid-19 pandemic does not violate a criminal defendant’s constitutional rights.”).

    Moreover, there is no fundamental constitutional right to not be tested for a virus before entering a place of public accommodation. Aviles v. De Blasio, 2021 U.S. Dist. LEXIS 38930, 50 (S.D.N.Y. Mar. 2, 2021); see also Webb v. Johnson, 2021 U.S. Dist. LEXIS 95392, 13 (D. Neb. Mar. 2, 2021) (D. Neb. May 19, 2021) (prisoner had no fundamental right to refuse having his temperature taken); Wilcox v. Lancour, 2021 U.S. Dist. LEXIS 11968, 23-24 (W.D. Mich. Jan. 22, 2021) (prisoner had no fundamental right to refuse a nasal passage test for Covid-19); Little Rock Family Planning Servs. v. Rutledge, 458 F. Supp.3d 1065, 1074 (E.D. Ark. 2020) (applying Jacobson to uphold requirement that women obtain negative Covid-19 test before medical procedure).

    Mill’s axiom is even more compellingly opposed to the notion of an absolute right to not be vaccinated, given that your “arm” (i.e., the virus) does NOT stop at the next person’s nose; rather, it continues from that person’s nose to a unlimited number of others’, and moreover, you aren’t swinging your arms one time only, but rather are continuously swinging them,, as are those whose noses you’ve reached.

    In that respect, vaccination as a requisite for exercise of parenting time serves not merely the interests of that particular child, but of other children and the community as a whole.

    “…The researchers found that children and young adults—who made up one-third of COVID cases—were especially key to transmitting the virus in the studied populations. ‘Kids are very efficient transmitters in this setting, which is something that hasn’t been firmly established in previous studies,’ Laxminarayan said. ‘We found that reported cases and deaths have been more concentrated in younger cohorts than we expected based on observations in higher-income countries.’ Children and young adults were much more likely to contract coronavirus from people their own age, the study found. Across all age groups, people had a greater chance of catching the coronavirus from someone their own age. The overall probability of catching coronavirus ranged from 4.7% for low-risk contacts up to 10.7% for high-risk contacts.”

    https://www.princeton.edu/news/2020/09/30/largest-covid-19-contact-tracing-study-date-finds-children-key-spread-evidence (website last visited 8/25/21).

    See, also: Transmission in Schools, World Health Organization (“WHO”), https://tinyurl.com/xzrzdacn; (last updated Oct. 21, 2020); Young Joon Park et al., Contact Tracing During Coronavirus Disease Outbreak, South Korea, 2020, 26 Emerging Infectious Diseases J., 2465-2468 (Oct. 2020).

    The evidence shows that children—particularly those ten years of age and older—are 5ransmitters of the virus. See, e.g., What We Know About COVID-19
    https://kvoa.com/ap-arizona-news/2021/08/25/arizona-reports-3234-covid-cases-10-deaths-averages-climb/ (website last visited 8/25/21).

    “…Arizona on Wednesday reported 3,234 additional COVID-19 cases and 10 more virus deaths as rolling averages for cases and deaths continued to climb during the current surge. Johns Hopkins University data show that Arizona’s seven-day rolling average of daily new cases rose over the past two weeks from 2,495 new cases on Aug. 9 to 2,969 on Aug. 23. The rolling average of daily deaths rose from 16.9 deaths to 24.4 during the same period. A judge has scheduled a Sept. 13 hearing to hear arguments in a lawsuit challenging new Arizona laws restricting the power of local governments and school districts to impose COVID-19 requirements.” Id.

    “…Indeed, large outbreaks have occurred with apparent transmission in schools . . . [and] [p]reventing transmission in school settings will require addressing and reducing levels of transmission in the surrounding communities through policies to interrupt transmission (e.g., restrictions on indoor dining at restaurants). In addition, all recommended mitigation measures in schools must continue[,] [including]: . . . expanding screening testing to rapidly identify and isolate asymptomatic infected individuals. Margaret A. Honein et al., Data and Policy to Guide Opening Schools Safely to Limit the Spread of SARS-CoV-2 Infection, J. Am. Med. Ass’n (Jan. 26, 2021),
    https://tinyurl.com/y6529wvf.

    See, also: Transmission in Schools, World Health Organization (“WHO”), https://tinyurl.com/xzrzdacn; (last updated Oct. 21, 2020); Young Joon Park et al., Contact Tracing During Coronavirus Disease Outbreak, South Korea, 2020, 26 Emerging Infectious Diseases J., 2465-2468 (Oct. 2020).

    And, see, Sahuarita School District campus monitor dies of COVID-19,
    https://tucson.com/news/local/sahuarita-school-district-campus-monitor-dies-of-covid-
    19/article_a05c0b67-ccdb-5d25-942a-48daf13e6429.html (website last visited 8/25/21)

    See, also, 3 educators battled COVID-19 after teaching in the same room. 1 died. Now, they have a warning, https://www.azcentral.com/story/news/local/arizona-education/2020/07/09/after-arizona-teacher-kim-byrd-dies-covid-questions-raised-over-school-reopening/5405651002/ (website last visited 8/25/21).

    See, also, State Superintendent says 6 Tucson Unified employees died of COVID last week, https://www.abc15.com/news/coronavirus/state-superintendent-says-6-tucson-unified-employees-died-of-covid-last-week (website last visited 8/25/21). “As of August 24, 2021, at least 1,013 active and retired K-12 educators and personnel have died of COVID-19. Of those, 300 were active teachers.” Id.

    Against this, is balanced the intangible violation of your rights you claim would result from requiring y9u to be vaccinated. Again, context is everything. You certainly have that right if you isolate yourself from the community.

    I can say without equivocation that the risks from vaccination are miniscule in comparison to the risks of non-vaccination. See, e.g., the following that I’ve excerpted from the August 25, 2021 New England Journal of Medicine (to which I subscribe), concerning the Pfizer mRNA vaccine based on evaluation of more than 1.7 million vaccinees:

    “Safety of the BNT162b2 mRNA Covid-19 Vaccine in a Nationwide Setting
    New England Journal of Medicine — August 25, 2021

    “List of authors.
    Noam Barda, M.D., Noa Dagan, M.D., Yatir Ben-Shlomo, B.Sc., Eldad Kepten, Ph.D., Jacob Waxman, M.D., Reut Ohana, M.Sc., Miguel A. Hernán, M.D., Marc Lipsitch, D.Phil., Isaac Kohane, M.D., Doron Netzer, M.D., Ben Y. Reis, Ph.D., and Ran D. Balicer, M.D.

    “Abstract
    BACKGROUND
    Preapproval trials showed that messenger RNA (mRNA)–based vaccines against severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) had a good safety profile, yet these trials were subject to size and patient-mix limitations. An evaluation of the safety of the BNT162b2 mRNA vaccine with respect to a broad range of potential adverse events is needed.

    * * * * *

    “CONCLUSIONS
    In this study in a nationwide mass vaccination setting, the BNT162b2 vaccine was not associated with an elevated risk of most of the adverse events examined. The vaccine was associated with an excess risk of myocarditis (1 to 5 events per 100,000 persons). The risk of this potentially serious adverse event and of many other serious adverse events was substantially increased after SARS-CoV-2 infection. (Funded by the Ivan and Francesca Berkowitz Family Living Laboratory Collaboration at Harvard Medical School and Clalit Research Institute.)”

    https://www.nejm.org/doi/full/10.1056/NEJMoa2110475

    I hope that this response calms your apoplexy over my failure to immediately drop everything in order to comment on that Illinois parenting time case, and to answer whether you have an absolute right to refuse vaccination. As you can see, it doesn’t matter what I say; the very well-settled constitutional law is that you do not. The libertarian philosophy, as expressed by Mill, likewise holds that in the midst of a pandemic, you don’t.

    Whether something is constitutional or justifiable, and whether it is desirable, are of course different questions.

  2. Because of its length, the reply on which I expended two hours in reply to your questions (which you inaccurately presume I await with baited breath in order to drop everything and respond), would not post. Half of it was lost. It was written not so much for your benefit, but for the benefit of others. Given your uncivil attitude here, I’m not inclined to rewrite it. We’ll see. I will say this: it’s compelling evidence of a fundamentally delusional apprehension of reality to write: “…if a candidate like Hunt can’t denounce the madness of exploiting a mother’s ability [sic] to see her own 11 year old son in order to coerce her into getting penetrated with a needle, then I don’t want him anywhere near developing local policies as an elected official.”

    First, I reject your premise. The motivation of the judge was almost certainly the welfare of the child, not a nefarious plot to jab the mother for the sake of jabbing. But it seems that your conspiracy of evil-doers knows no bounds. Apparently, now I am part of the conspiracy. Your numerous assumptions derived from two very skeletal Yahoo News pieces aren’t supported by any known facts.

    I am not going to “denounce” a Cook County, Illinois judge’s initial order in a parenting time case about which I know nothing other than your unsupported assumptions and that skimpy, skeletal, second hand reporting. Doing so would be crackpot and irresponsible. You can call the modification of that order (the substance of which is not provided by Yahoo or by you) “winning,” but It’s almost certainly not the “win” you think it is. There is virtually no chance that the judge’s vacation of his initial order had anything to do with the constitutionality of him restrincting the mother’s parenting time until she was vaccinated, because the United States Supreme Court has held that a person can be compelled to be vaccinated, quarantined, etc. during an epidemic. Based on the sketchy details of the followup story, it’s a very safe bet that the judge vacated his initial ruling becausehe realized that the hearing did not comport with Due Process in that the judge ruled sua sponte on an insufficient record. On a complete record, the judge would be fully in accordance with 116 years of U.S. Constitutional jurisprudence, in issuing the very same order.

    Rather than reconstruct the civil reply that would ot post, I will throw the weight of reality in your direction withut regard to niceties.

    No, you don’t have an absolute right to refuse vaccination. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (the state’s compulsory vaccination law did not violate the Fourteenth Amendment); Compagnie Francoise De Navigation a Vapcur v. Bd. Of Health of State of La., 86 U.S. 380 (1902) (Louisiana law requiring involuntary quarantine during a yellow fever outbreak was a reasonable exercise of state police power); Zucht v. King, 260 U.S. 174, 176 (1922) (stating that it is “settled that it is within the police power of a state to provide for compulsory vaccination”); Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds” and “[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death”); Phillips v. City of New York, 775 F.3d 538, 542-43 (2d Cir. 2015) (per curiam) (rejecting parents’ challenge to New York state requirement that all children be vaccinated in order to attend public school; “New York could constitutionally require that all children be vaccinated in order to attend public school. New York law goes beyond what the Constitution requires by allowing an exemption for parents with genuine and sincere religious beliefs. Because the State could bar [the] . . . children from school altogether, a fortiori, the State’s more limited exclusion during an outbreak of a vaccine-preventable disease is clearly constitutional.”); Whitlow v. California, 203 F. Supp. 3d 1079, 1091 (S.D. Cal. 2016) (“conditioning school enrollment on vaccination has long been accepted by the courts as a permissible way for States to innoculate large numbers of young people and prevent the spread of contagious diseases”); Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017) (religious plaintiff had no constitutional right to an exemption from mandatory vaccination law for public school students, though state provided one); Workman v. Mingo Cnty. Bd. of Educ., 419 F. Appx. 348, 355-56 (4th Cir. 2011); W.D. v. Rockland Cnty., ___ F. Supp.3d ___, 2021 U.S. Dist. LEXIS 33515, 74
    (S.D.N.Y. Feb. 22, 2021); Doe v. Zucker, ___ F. Supp.3d ___, 2021 U.S. Dist. LEXIS
    28937, 111 (N.D.N.Y. Feb. 17, 2021); Connecticut Citizens Defense League, Inc. v.
    Lamont, 465 F. Supp.3d 56, 72 (D. Conn. 2020); Middleton v. Pan, 2016 U.S. Dist.
    LEXIS 197627, 20 (C.D. Cal. Dec. 15, 2016); George v. Kankakee Cmty. Coll., 2014 U.S. Dist. LEXIS 161379, 8-9 (C.D. Ill. Oct. 27, 2014), recommendation adopted, 2014 U.S. Dist. LEXIS 160737, 1-2; Boone v. Boozman, 217 F. Supp.2d 938, 954 (E.D. Ark. 2002).

    (continued in self-reply below)

    • Multiple links in a comment will put it in pending status.

      As for civility, it does begin to dissipate the closer you get to imposing decisions I do not agree with on me and my family.

      I’m sorry to take you away from the door knocking I hope you’ve been doing.

  3. (con’t) Travis, the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution indeed does protect the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 64, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).

    That right is not, however, absolute. Here, you’re up in arms over a restriction on parenting time until the affected non-custodial parent takes reasonable steps to protect her child from harm, by getting vacinated against the pathogen responsible for a pandemic that last week produced a reported 187,175 Delta variant infections in children in the U.S., of which one in 50 children were hospitalized, with 20 U.S. children per week now dying from the Delta variant.That context invokes this jurisprudence:

    “While a constitutional liberty interest in the maintenance of the familial relationship exists, this right is not absolute.” Woodrum v. Woodward County, 866 F.2d 1121, 1125 (9th Cir 1989). The interest of the parents must be balanced against the interests of the state in protecting the child. Id. The Fourteenth Amendment, then, “guarantees that parents [rights’ to their children will not be interfered with] without due process of law except in emergencies.” Mabe v. San Bernadino Co. Dept. of Public Social Services, 237 F.3d 1101, 1107 (9th Cir. 2001); Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35, 69 L. Ed. 1070, 45 S. Ct. 571 (1925); Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); Campbell v. Burt, 141 F.3d 927 (9th Cir. 1998); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1996); Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir. 1991); Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1988); accord, J.B., 127 F.3d at 927; Croft, 103 F.3d 1123, 1125; Hurlman v. Rice, 927 F.2d 74,
    79 (2d Cir. 1991); Duchesne v. Sugarman, 566 F.2d 817, 824 (2d Cir. 1977).

    In the Cook County case, I infer from the article that the judge realized that the lack of a developed record adequate to support his order, did not satisfy procedural due process. It isn’t clear whether the mother is seeking parenting that she was previously denied for some reason, or whether the father was seeking to limit parenting time that the mother had been exerciing (it appears to be the former). Because that order was self-vacated, the appeal is moot and the case returns to the trial court where presumably a full record will be developed.

    You demand that I pronounce whether you have a right to refuse vaccination, and also whether you should lose custody of your children because you refuse to be vaccinated. As the foregoing case law amply shows, it is not for me to make such a pronouncement. As a matter of constitutional law, you have no such right (unless you are correct that this is not really about public health but is actually a conspiracy of unprecedented vastness to make people get needlestiks and wear masks, for reasons unclear).

    (con’t, below)

  4. Well, I’m glad the ‘lost’ submission now is posted. Whatever duplication resulted from subsequently posted matter won’t do any harm.

    I have in no way, whatsoever, come “closer to imposing” any sort of decision upon you and your family with which you disagree.

    It is, however, undisputed as a matter of constitutonal law, and consistent with libertarian philosophy, that whether you agree with a vaccination policy or not, is not the deciding criterion.

    The sole remaining question you’ve posited is whether I personally think that you should lose physical custody of your children because you refuse to undergo a safe vaccination in order to protect your children (and anyone with whom you and they come into contact) from COVID-19 infection.

    The answer is “no.” That answer is not based on you having a right to refuse to vaccinate if it is mandated, because you don’t. My answer is based on pragmatic and utilitarian principles. The state lacks the resources to enforce such a policy in light of only 50% of Montanans being vaccinated. Any apparatus that were assembled to attempt such a task would inherently be so authoritarian as to trample on civil liberties, and would inevitably engender violent civil disorder, as well as being extremely traumatizing to the children. The courts lack the resources to provide even pro forma due process to so many people. Less onerous alternatives are available. Now, if your question were in the hypothetical context of your spouse being vaxxed and seeking a marital separation or dissolusion decree, and a request by her that she be awarded physical custody and that the court deny you parenting time unless you took reasonable measures to protect your children from COVID-19 infection and disease, then it would depend. If your spouse had the children vaccinated, then denying you parenting time would be unreasonable, whereas requiring you to be masked during parenting time would not.

    — jkh

    • Roy says:

      Despite the incredible amount of copypasta, it does not appear your question was answered. Good question, Travis.

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