Christine Stuart / ctnewsjunkie file photo
Attorney General William Tong with Gov. Ned Lamont, Treasurer Shawn Wooden, Lt. Gov. Susan Bysiewicz, and Secretary of the State Denise Merrill (Christine Stuart / ctnewsjunkie file photo)

HARTFORD, CT — (Updated 6 p.m.) A few days after the Department of Public Health for the first time identified more than 100 schools with substandard immunization rates for measles in Connecticut, Attorney General William Tong issued an opinion suggesting that it’s legal for lawmakers to get rid of the religious exemption.

Tong’s formal opinion, his first as attorney general, says “There is no serious or reasonable dispute as to the State’s broad authority to require and regulate immunizations for children: the law is clear that the State of Connecticut may create, eliminate or suspend the religious exemption in Section 10-204a(a) in accordance with its well-settled power to protect public health and safety.”

The opinion was in response House Majority Leader Matt Ritter’s request for a formal opinion “regarding the constitutionality of eliminating the religious exemption for required immunizations.”

Currently, pre-school and school-aged children can present a statement saying they are not immunized because it would be “contrary to the religious beliefs of such a child or the parents or guardian of such child.

Ritter pointed to the recent measles outbreaks in New York and the Pacific Northwest as the reason the religious exemption should be eliminated. He’s promised House a vote on the issue within the next year and he hopes Tong’s decision helped inform his colleagues.

“As you may know three states — California, Mississippi, and West Virginia — currently do not have a religious or philosophical exemption for required school immunizations. In addition, the lack of either exemption has been challenged and upheld under federal constitutional principles,” Ritter wrote in his letter.

Ritter said he plans to talk with House Speaker Joe Aresimowicz, Minority Leader Themis Klarides, R-Derby, and Senate President Martin Looney about whether there’s an appetite to get rid of the religious exemption this year.

He said they thought they would have to pass a law to get access to the school-level data. But now the data has been made available and within a matter of days, they also have the opinion from Tong. With two school-aged children at home, Ritter said it’s an important issue that no one thought they would be dealing with at the Capitol this year. He said he was unable to predict what would happen next.

Tong said he doesn’t have an opinion as to whether the state should eliminate the religious exemption because that’s a policy decision for the legislature and the governor.

Tong’s opinion focused on the constitutionality under both the federal and state constitutions.

“Despite a diligent search, we have been unable to find a Connecticut case that has held that a religious exemption from school vaccinations was constitutionally required,” Tong wrote. “On the contrary, over 100 years ago, the Connecticut Supreme Court upheld mandatory school immunizations. Bissell v. Davison, 65 Conn. 183 (1894). More recently, a superior court case has upheld the constitutional dimensions of immunization in the context of a child custody case.”

In the custody case, Tong said the court noted that “religious freedom in this country is not an absolute right” and that “the right of parents to raise their children in accord with their personal and religious beliefs must yield when the health of the child is at risk or when there is a recognized threat to public safety.”

There are at least 44 lawmakers — 41 Republicans, and three Democrats — who have expressed their opposition against removing the religious exemption. They also wrote to Tong outlining why, under federal and state law, they believe it would be both unnecessary and illegal to eliminate the religious exemption.

One of their arguments was that Connecticut doesn’t have a problem.

“Connecticut currently has one of the highest vaccination rates in the country at 98.2%, far greater than the 75-86% required to achieve herd immunity for mumps, the 80-86% required for polio, and the 83-94% required for measles,” the 44 lawmakers said. “The use of the religious exemption in Connecticut, therefore, poses absolutely no threat to public health or safety.”

However, Ritter believes that argument was weakened Friday by the release of data identifying 116 schools in Connecticut where the immunization standard for measles is below the minimum rate of 95% recommended by the Centers for Disease Control and Prevention. That group included six schools with MMR vaccination rates below 80%.

Ritter said Monday that the information was “shocking” and many lawmakers were still digesting it.

Rep. Vincent Candelora, R-North Branford, said he thinks they need to slow it down a little. He said the Department of Public Health is still revising some of the data it released Friday and the legislature needs to take a look at that data before moving forward.

“I’m not sure it rises to the level of eliminating the religious exemption,” Candelora said.

The other argument the 44 lawmakers, including Candelora, made in the letter in support of the religious exemption was that eliminating it would force parents with strongly held religious beliefs to homeschool their children. They said this requirement would violate Connecticut’s constitution that mandates “there shall always be free public elementary and secondary schools in the state.”

But Tong says in a footnote that “Connecticut’s constitutional guarantee of free public education does not limit the State’s power to require vaccinations.”

Candelora said he doesn’t believe anyone is thinking about the consequences for families with sixth-, seventh-, and eighth-grade students who might have to consider homeschooling if the religious exemption is eliminated.

“These are significant educational decisions,” Candelora said.

LeeAnn Ducat, founder of Informed Choice Connecticut, said Tong’s opinion is “based on a government ‘assumption’ that a medical liability free product that the Supreme Court determined ‘unavoidably unsafe’ protects the public safety and health.”

If that’s true then, “the public “is entitled to the scientific evidence used by the government to justify labeling a group of people who claim a religious exemption as a public health threat If no evidence is available, then discrimination laws and Constitutional rights are being violated. You can’t legislate based on mere conjecture,” she added.