The anti-vaccine movement’s momentum has slowed.
A judge put Health Secretary Robert F. Kennedy Jr.’s sweeping changes to the childhood vaccine schedule on ice. Kennedy has largely stopped publicly talking about vaccines amid polling indicating that it’s politically unpopular. And some efforts in statehouses to eliminate vaccine mandates, including Iowa and Louisiana, have faltered.
But there is one strategy that could deliver the anti-vaccine movement a major win: the legal argument that vaccine mandates without a religious exemption violate First Amendment religious freedoms.
“There are cases moving towards the Supreme Court from many different corners that are going to bring to a head this conflict and create this legal reckoning,” Mary Holland, head of the anti-vaccine group Kennedy founded, Children’s Health Defense, told a crowd of supporters in D.C. in March. “The truth is on our side, the ethics are on our side, the science is on our side, and the law is on our side. Let us win.”
Two of the most prominent anti-vaccine groups, Children’s Health Defense and Informed Consent Action Network, have spent nearly $50 million on legal expenses since 2016, according to a Post analysis of publicly available tax records. Holland’s group spent at least $21 million, with ICAN spending at least $28 million. Some of that money has gone toward fighting vaccine mandates, but it is unclear how much.
As these groups work to challenge vaccine mandates, their leaders say that it is inaccurate to say they oppose vaccines.
Holland told The Post in a statement that her group “is not anti-vaccine. We are pro-vaccine safety and anti-vaccine mandates.” The head of Informed Consent Action Network, Del Bigtree, said in a statement “we are not seeking to eliminate vaccines” but to ensure informed consent.
Some have funded attempts — so far unsuccessful — to overturn a 1905 Supreme Court decision upholding the power of state governments to mandate vaccines to protect public health. But groups have now pivoted to religious freedom claims that could reshape or weaken the legal foundation for vaccine mandates in the United States.
The Supreme Court signaled in December that it may be open to a constitutional claim based on the lack of a religious exemption for vaccine mandates in New York, one of five states that do not allow such exceptions. The high court sent the case, involving Amish parents, back to a lower federal appeals court with instructions to evaluate a recent ruling allowing parents to opt out of LGBTQ materials in schools based on religious grounds.
Legal watchers say that case, as well as others moving through the courts in West Virginia and California, could be the anti-vaccine movement’s best hope of a national legal win.
Vaccine rates against measles had already fallen sharply across the country since the coronavirus pandemic, according to a previous Washington Post examination, with just over a quarter of U.S. counties reaching the level of herd immunity among kindergartners needed to protect against the preventable infectious disease. Many school districts have pulled back on strictly enforcing mandates given the politicization of vaccines, and states with broad religious and other exemptions have experienced larger declines in vaccination rates, The Post found.
Holland said in a statement that some people are overestimating the impact a religious exemption could have.
“These public health experts ignore data showing that only a small percentage of families use religious exemptions to vaccination.”
Lawrence Gostin, a Georgetown University professor who directs the World Health Organization Collaborating Center on National and Global Health Law, called a potential court win for the anti-vaccine movement “the worst nightmare for public health.” It could drive vaccine rates down further, he said, if schools and governments stop scrutinizing the credibility of religious exemptions sought for vaccine mandates for fear of running afoul of such a ruling. Gostin has been involved as an adviser and witness in some cases supporting vaccine mandates.
“The MAHA movement and the court itself should be very careful what they wish for, because I think if this goes too far, we’re going to see childhood diseases come roaring back with a vengeance,” Gostin said, “and not just outbreaks here and there that we have been able to put out, but nationwide, sustained outbreaks that involve a lot of suffering, a lot of hospitalization and some death — all of it avoidable.”
A costly legal fight
Two of the anti-vaccine groups that have invested the most money in legal fights have close ties to Kennedy. The Informed Consent Action Network is run by a former communications director for his presidential campaign, Bigtree. One of ICAN’s top lawyers is Aaron Siri. Kennedy tapped Siri to help screen candidates for top federal health positions.
Health and Human Services spokesperson Andrew Nixon did not answer questions about Kennedy’s ties to these groups and his positions on their fight for religious exemptions.
“At HHS, we are advancing policies that strengthen public health while protecting conscience rights and religious freedom,” Nixon said in a statement.
ICAN — which received donations and greater prominence during the pandemic — has paid more than $28 million in legal fees over the last decade to Siri’s firm, Siri & Glimstad, according to publicly available tax records. Its website details how the group has filed lawsuits to access federal health public records and establish vaccine exemptions. ICAN has engaged in public fundraising to support these campaigns, including a “Free the Five” campaign to fund legal challenges on bans on religious exemptions in West Virginia, California, New York, Connecticut and Maine. Under Kennedy, HHS has issued letters supporting religious exemptions.
In 2023, ICAN successfully established religious exemptions to vaccine requirements in Mississippi through Siri’s legal challenge. He has also been working on cases in West Virginia to establish a similar religious exemption. One case is pending at the state’s Supreme Court for review after it stayed a lower court’s ruling. In a separate case, also from West Virginia, the U.S. Court of Appeals for the 4th Circuit recently ruled 2-1 against a case Siri has worked on in a decision that could be a contender for Supreme Court review.
Siri said in a statement the goal of such cases is to bring the “five outlier states in alignment with the other forty-five in respecting religious liberty.”
“These are not challenges to vaccine mandates. That is hyperbolic,” he said. “These cases are about the small minority of individuals in each state for whom injecting one or more vaccines would violate their deeply held religious convictions. We are heartened that courts are beginning to recognize that the rights of this minority have been trampled upon for far too long.”
Siri said it is biased to call ICAN an anti-vaccine group, saying that the term is being used as a “pejorative aimed at discrediting ICAN’s mission and work based on nothing of substance.”
ICAN describes itself on its website as focused on “providing every person with the right to informed consent” and “passionate” about “eradicating man-made disease.” Bigtree, who runs the group, is described on the website as one of the “preeminent voices of the vaccine risk awareness movement.”
After Mississippi created a religious exemption almost three years ago, over 1,800 children received one in the 2024-2025 school year, according to state health department records.
In the meantime, the U.S. has seen a resurgence of measles outbreaks. Public health officials say two children in Texas have died of measles complications, while Siri and other allies attribute the children’s deaths to poor medical care.
Thousands more have been infected with measles across the country.
Bigtree said in an interview that the money ICAN has invested is starting to pay off as his group has “the right type of case.”
“This movement is built on the success that we’ve had in many ways in courtrooms,” Bigtree said. “We have a lot of wind at our backs.”
The group also supported the New York case legal experts say is most promising, Miller v. McDonald, initially filed in 2023. The case centers on Amish parents who argue their children were unfairly excluded from school since the state refuses to recognize religious vaccine exemptions.
“The refusal to provide the Amish religious exemptions when the state readily provides discretionary secular medical exemptions is unconstitutional under the First Amendment’s Free Exercise Clause,” one of the filings reads. “The Compulsory Vaccination Law is in sharp conflict with their religious beliefs and their way of life.”
The New York case that lies at the crux of the question could go a few ways. The U.S. Court of Appeals for the 2nd Circuit could take the Supreme Court’s direction and revise its decision, essentially requiring the addition of religious exemptions in both New York and ultimately Connecticut as it is part of the same federal circuit, legal watchers say. That could have a domino effect with other states.
If the 2nd Circuit still rejects a religious exemption, the high court could take it again.
Dorit Reiss, a professor at the University of California College of the Law at San Francisco, focused on the anti-vaccine movement, has signed on to an amicus brief opposing its arguments in the West Virginia Supreme Court case.
Reiss said that while the Supreme Court only chooses to hear a fraction of cases, if it ruled in the plaintiffs’ favor that would, in practice, allow for religious vaccine exemptions across the country.
Siri emphasized that the potential outcome would apply to Amish communities. But legal scholars said the case could have much broader implications because of the precedent it would create.
“That was the intent,” Gostin said. “If you look at the pattern of his and other cases the intent is to undermine vaccines and broaden exemptions writ large.”
“ICAN certainly seeks to broaden exemptions,” Siri said in a statement. “If there were no mandates, there would be significantly less legal work in this area.”
Last year, the U.S. Supreme Court ruled that school officials in Montgomery County, Maryland, could not require young children to participate in lessons with books including LGBTQ content that conflict with their parents’ religious beliefs. The high court has also prioritized religious freedom in several other cases, most notably in two cases related to the pandemic. In 2020, the court ruled that then-New York Gov. Andrew M. Cuomo (D) had violated the First Amendment’s religious freedom protections when he restricted church attendance, and in the next year that California Gov. Gavin Newsom (D) could not restrict at-home religious gatherings.
“The writing is on the wall,” said Wendy Parmet, who co-directs Northeastern University’s Center for Health Policy and Law and has advised vaccine mandate supporters in the West Virginia Supreme Court case. “It hasn’t been etched in stone yet, but it’s the direction the court has been going on religious liberty in general and vaccines in particular.”
If a national religious exemption is instituted, it would launch a new era for vaccination policy that’s much more discretionary, Parmet said.
“With the power of the anti-vaccination movement now and the misinformation that’s out there and the distrust of vaccines and the threat of litigation if you deny [a religious exemption], it kind of creates an anyone-can-opt-out system, and I think that’s way more destabilizing than where we were 30 years ago,” she said.
Siri noted that the vast majority of states already have vaccine exemption options, saying this characterization “lacks foundation in reality.”
Siri and Holland also said that those who wanted to get vaccinated could still do so, with Bigtree noting if his group were to secure a national legal win he would “Praise God.”
“Every vaccine mandate is a violation of the Nuremberg Code and we are the most successful nonprofit when it comes to litigating on this issue,” Bigtree said.
Members of the anti-vaccine movement often will invoke the Nuremberg Code, a set of principles created for ethical research. But public health experts say vaccines are not experimental, as they have been widely tested and deemed safe by governmental public health authorities.
Stalled state activism
The anti-vaccine movement’s efforts to change policy beyond courthouses have had mixed success. The Health Freedom Defense Fund, an anti-medical mandate group run by Leslie Manookian, MAHA Action — the political advocacy arm of the Make America Healthy Again movement — and others have been pushing for legislation to eliminate medical mandates, including for vaccines, in at least 12 states.
Manookian and Holland told The Post they felt they had more momentum than ever before, especially in more conservative states. They credited the public backlash to the covid vaccine and Kennedy’s ascent to the top of the nation’s health apparatus. Manookian noted, however, that the bills were introduced in some liberal states and that her group is nonpartisan.
But so far, the laws have been defeated or failed to advance in Iowa, New Hampshire, and Louisiana among others, according to Northe Saunders, president of the pro-vaccine advocacy group American Families for Vaccines. Saunders’s group has lobbied against many of these bills by showing Republicans polling from the party’s own pollsters that says removing vaccine mandates would be unpopular.
“The majority of voters don’t want to remove school vaccine requirements, they don’t want to weaken vaccine policy, and that cuts across all party lines,” Saunders said. “The argument that it’s going to cost them in November is what is slowing down this legislation.”
A bill has passed the Arizona House, Manookian noted. It is unclear if it will become law.
“We are thrilled with this progress and motivated to carry on next year and as long as it takes to ensure that all Americans’ God-given right to make their own medical choices is protected by law,” Manookian told The Post in a statement.
Additionally, Manookian’s group has spent nearly $3 million since 2020 on legal efforts, according to The Post’s analysis of public tax records. Some of those funds have gone toward a lawsuit that would challenge the 1905 precedent, Jacobson v. Massachusetts, set when the Supreme Court held that vaccine mandates for smallpox were a permissible exercise of the state’s power to protect public health. Many legal experts believe Jacobson is unlikely to be overturned anytime soon.
The Supreme Court requested a response from the Los Angeles Unified School District regarding a U.S. Court of Appeals for the 9th Circuit case this year where employees of the district had sued over their employer’s vaccine mandate during the pandemic — indicating interest from the court. Several Republican attorneys general asked the Supreme Court to intervene this winter, but the court declined to hear the case in May.
Children’s Health Defense and other groups have also urged Trump to sign an executive order instituting religious exemptions from vaccine mandates and appealed to the new Religious Liberty Commission he created for support. But Trump wrote to a separate group who petitioned along similar lines this year and made no commitments to do so.
The White House did not answer questions regarding the president’s plans on religious exemptions. “The Trump administration will continue to restore Gold Standard Science in our decision-making while defending Americans’ religious liberties,” spokesman Kush Desai said in a statement.
Holland, for her part, said in an interview she still has hope in the courts.
“This court has signaled very strongly that it’s very pro-religious rights. It’s very pro-parental rights,” she said. “One of these cases is going to bubble up before long.”
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