Argued: October 12, 2017
from the United States District Court for the Eastern
District of Michigan at Flint. No. 4:16-cv-12545-Linda V.
Parker, District Judge.
Oliveri, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for
F. Fowler, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee Nick Lyon. Davidde A. Stella, WAYNE
COUNTY CORPORATION COUNSEL, Detroit, Michigan, for Appellees
Wayne County, Hammami, and Austerberry.
Oliveri, Brandon Bolling, THOMAS MORE LAW CENTER, Ann Arbor,
Michigan, for Appellant.
F. Fowler, Mark A. Gabrielse, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellee Nick Lyon. Davidde
A. Stella, WAYNE COUNTY CORPORATION COUNSEL, Detroit,
Michigan, for Appellees Wayne County, Hammami, and
Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges.
SUHRHEINRICH, J., delivered the opinion of the court in which
GRIFFIN, J., joined, and KETHLEDGE, J., joined in the result.
KETHLEDGE, J. (pg. 12), delivered a separate opinion
concurring in the judgment.
SUHRHEINRICH, Circuit Judge.
state of Michigan mandates that school-age children be
vaccinated prior to entering the public school system. It
also offers exemptions from this requirement for certain
medical and nonmedical reasons. However, in order to get an
exemption, a parent must first visit a local health
department and explain the basis for his or her objection. A
devout Catholic, Plaintiff-Appellant Tara Nikolao
("Nikolao") sought a vaccination waiver for her
children for religious reasons. At the mandatory meeting, two
Wayne County nurses tried to disabuse Nikolao of the notion
that her Catholic faith prevented her from vaccinating her
children, but Nikolao ultimately received the waiver.
Nonetheless, she sued state and county officials for
violations of the First Amendment's religion clauses. The
district court granted Defendants' motion to dismiss. We
affirm in part and vacate and remand in part.
following facts are taken as true for purposes of
Nikolao's appeal from the district court's dismissal
under Rule 12(b)(6):
state law requires parents and guardians to vaccinate their
children prior to entering public school. Mich. Comp. Laws
§ 333.9205. However, parents may seek exemptions from
the mandatory vaccination law if they object "because of
religious convictions or other objection to
immunization." Id. § 333.9215(2). In
December 2014, the Michigan Department of Health and Human
Services ("MDHHS") passed a rule requiring parents
asking for vaccination exemptions on behalf of their children
to visit a county health office to discuss their objections
with a local health worker. Mich. Admin. Code r. 325.176(12)
("Certification Rule"). The health worker must
certify that the parent has "received education on the
risks of not receiving the vaccines being waived and the
benefits of vaccination to the individual and the
community." Id. Moreover, Michigan has
published a series of "Waiver Notes" that contain
responses to many common objections to vaccination. Local
health workers are instructed to use these Notes and to give
them to objecting parents for review. Waiver Notes are also
available online to the general public.
October 2015, Nikolao went to the Wayne County health
department to get an exemption. As a devout Catholic, Nikolao
maintains that she cannot use vaccines "'which have
moral problems, ' such as those created from aborted
fetal cells." R. 1, ID# 36. Further, she believes
"the body is a temple and injecting it with chemicals
that alter the person permanently violates the will of
God." R. 1, ID# 37.
met with two Wayne County nurses, Jane Does 1 and
The nurses pressed Nikolao for more information. At one
point, Jane Doe 2 issued her an ultimatum, telling Nikolao
that she must "declare what religion she practices,
explain her religious beliefs, and engage in a back and forth
discussion . . . concerning her religious objection." R.
1, ID# 51. She also told Nikolao that "there are no
religions that have objections to vaccines." R. 1, ID#
51 (emphasis omitted). Finally, Nikolao was given the
state's Religious Waiver Note-a document responding to
common religious objections to vaccination-for review. The
Religious Waiver Note contained a quote falsely attributed to
Pope Benedict XVI stating that parents who chose not to
vaccinate their children "would be in 'more
proximate cooperation with evil' than those who gave
their children the vaccines in question because of the life
saving nature of vaccines." R. 1, ID# 28. In reality,
Monsignor Jacques Suaudeau, a doctor at the Pontifical
Academy for Life, made these statements. R. 1, ID# 30.
did not yield to the nurses' pressure, and she was given
her exemption. However, on the form noting her compliance
with the Certification Rule, the nurses wrote that Nikolao
had objected because she wanted her "child to have
natural immunity." R. 11, Ex. 1. ...