The Colorado Court of Appeals has ruled that the constitutional rights of parents should have no more or less weight than other factors where a child’s safety is involved, in a case that pitted a father’s desire to vaccinate his children against his ex-wife’s religious objection.

Experts say that with the urgency to get people vaccinated against COVID-19, cases in which parents disagree about vaccinating their children could become more frequent. 

At issue was the legal standard needed for William Blake Crouch’s desire to vaccinate their children to override Rebecca Greene Crouch’s religious objection. 

When the couple divorced in 2017, their parenting plan included joint medical decision-making authority and said that absent a mutual agreement or court order, the children would not be vaccinated. However, William Crouch said he changed his mind about vaccination after researching the topic and after taking a business trip to Seattle during a measles outbreak there, which made him concerned about accidentally exposing his children to the disease. 

William Crouch also said he did not share Rebecca Crouch’s religious beliefs, and the children did not follow restrictions based on their mother’s religion during their time with William Crouch. 

The La Plata County District Court denied William Crouch’s request to modify their agreement for medical decision-making authority. The court said that while William Crouch successfully proved the children remaining unvaccinated would endanger their health, vaccination would interfere with Rebecca Crouch’s religious beliefs, so William Crouch needed to prove not vaccinating them would cause “substantial harm” to the children. 

The court found William Crouch had not met that standard of proof. 

According to the Court of Appeals, the district court should have focused on whether the advantage to the children of vaccination outweighs the harm caused by the change in decision-making authority. Infringement on Rebecca Crouch’s religious beliefs could factor in as harm caused, but should not have led the analysis, the court ruled.

“To the extent parents’ constitutional rights are relevant to the endangerment inquiry, they should be considered and weighed – without heightened scrutiny or deference,” Judge Neeti Pawar wrote. “In other words, the parents’ constitutional rights should be considered like any other factor that informs whether the harm likely to be caused by a reallocation of decision-making responsibility is outweighed by the advantage of the change.”

Steven Collis, the founding faculty director of the Bech-Loughlin First Amendment Center and of the Law and Religion Clinic at the University of Texas at Austin, said courts tend to avoid making value judgments about religious beliefs, but thanks to the coronavirus pandemic we likely have not seen the last of these types of cases. 

“I think it’s going to be something that will have to come up with COVID-19, where you’ve got parents who have divorced … and one parent doesn’t want to vaccinate their child,” he said. “That’s going to be interesting to see how it works with all of that, and it’s not going to be just religious objectors. I mean, a lot of people are opposed to vaccines, not really for religious reasons, but for other reasons altogether.”

The imminent risks posed by COVID-19 have already come up in disputes over decision-making and parenting time, said Suzanne Griffiths, managing shareholder of the family law and civil litigation firm Griffiths Law. She used an example of one parent’s frequent travel being a factor in denying visitation rights because of an elevated risk to the children contracting COVID-19.

“This is going to be huge,” she said of the issue of vaccination disagreements between parents. “Because, boy, we are headed down the COVID litigation path.”

The district court mistakenly applied a burden of proof for when a government action limits exercise of a parent’s constitutional right, rather than the burden that should apply when giving sole decision-making power to one parent, said the Court of Appeals. Typically, when a government action interferes with a fundamental constitutional right, the government has to prove a compelling state interest for doing so. 

That is not the correct standard to apply in this case, said the Court of Appeals, because the district court’s decision about William Crouch’s request to modify the parenting agreement was not a decision mandating vaccination or no vaccination. The Court of Appeals elaborated that a court’s ruling on decision-making authority between parents does not implicate religious freedom.

“To some degree, it’s a bit of a loophole,” said Christopher Griffiths, a shareholder at Griffiths Law. “The court is saying that they’re going to apply a lower legal standard, because they’re not actually the ones deciding,” but the Court of Appeals decision has cleared a path for the district court to give decision-making authority to the parent that they know favors vaccination.

The decision sends the case back to the district court with instructions to reconsider it under the balance of benefit versus harm of changing the parents’ decision-making authority. 

Collis said it may be difficult for the district court, and by extension appeals courts, to completely avoid making a value judgment about Rebecca Crouch’s religious beliefs if it decides the case in favor of William Crouch. Essentially the district court would be saying that her religious objection to vaccination is wrong by saying the need for vaccination outweighs her objection, he said.

“That’s where I think you could see some long-term ramifications here, but it’s only if all of those things happen,” he said. “And the district court may find a creative way to get out of that thicket.”

Attorneys for Rebecca and William Crouch have not yet responded to a request for comment.