Anti-vax teen that fought ban amid chickenpox outbreak loses in court—again

win, win —

Local health officials called it “resounding victory for public health.”

Child with chickenpox rash on her back held by her mother.

Enlarge/Child with chickenpox rash on her back held by her mother.

Judges in Kentucky have handed down another legal defeat to the unvaccinated teenager who sued his local health department for banning him from school and extracurricular activities amid a chickenpox outbreak earlier this year.

The Kentucky Court of Appeals on Friday quietly sided with the health department, saying that it was acting well within its powers to protect public health. The appeals court quoted an earlier ruling by the US Supreme Court saying that “Of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

The Northern Kentucky Health Department declared the latest court decision a “resounding victory for public health in Kentucky,” in a statement.

In March, 18-year-old Jerome Kunkel filed a lawsuitagainst the department seeking an injunction that would allow him to return to classes and activities at his private Catholic school, Our Lady of the Assumption Church and Academy. The department had issued the ban on unvaccinated students to try to curb the spread of anoutbreak of chickenpox at the school, involving 32 casesat the time.

Some ultraconservative Catholics, including Kunkel, are against certain vaccinations because their creation involves the use of fetal cells that were derived from aborted fetuses several decades ago. (Both types of chickenpox vaccines, Varivax and ProQuad, are developed with such cell lines.) The objection is out of line with theRoman Catholic Churchand evenOur Lady of the Assumption Church. Both advocate for vaccination. Still, Kunkel and others had obtained vaccine exemptions on religious grounds.

As such, Kunkel argued in court that the health department’s ban violated his Constitutional rights. His father went farther. In an interview with The Washington Post, Bill Kunkel called the health department’s actions “tyranny against our religion, our faith, our country.” The health department meanwhile held that its actions were “reasonable, appropriate, and necessary to control the spread of a highly infectious disease.” It went on to note that “if left uncontrolled, chickenpox, also known as varicella, can result inserious, if not deadly, consequences.”

On April 2, Judge James Schrand of Boone County Courtdenied Kunkel’s request for an injunction, siding with the health department. In May,Kunkel came down with chickenpox, his attorney revealed to the press.

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