Court upholds ruling against unvaccinated NKY student in chickenpox case

Updated: Jul. 1, 2019 at 1:16 PM EDT
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UNION, Ky. (FOX19) - The Kentucky Court of Appeals ruled Wednesday on the case of the northern Kentucky Catholic high school student who sued the Northern Kentucky Health Department over their decision to keep unvaccinated students out of school and sporting events amid a chickenpox outbreak.

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The health department banned all students at Our Lady of the Sacred Heart and Assumption Academy who did not have proof of immunity when an outbreak of 32 cases began.

Assumption Academy senior Jerome Kunkel, 18, claimed the Varicella Virus vaccination went against his religious beliefs and refused the shot.

The court upheld the Boone County Circuit Court’s ruling that found that the control measures taken by the health department at Assumption Academy were ‘reasonable, appropriate and necessary to control the spread of a highly infectious disease.’

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NKY Health put out a statement about the ruling calling it a ‘resounding victory for public health in Kentucky.’

Their statement addressed the court’s ruling which also stated that the court of appeals felt that if the illness was left uncontrolled, ‘chickenpox, also known as varicella, can result in serious, if not deadly, consequences.’

“Supporting the actions of the Health Department, the Court of Appeals quoted the U.S. Supreme Court’s statement that, “Of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” This statement of law embraces the very mission of the Northern Kentucky Health Department, which strives every day to prevent disease, promote wellness and protect against health threats in the Northern Kentucky community,” NKY health said.

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The teen sued because play in or attend any basketball games or any other extra curricular activities involving other schools.

Kunkel said that due to the case, he didn’t get to participate in the all star game for his high school basketball team and he didn’t have the chance to be scouted to play in college.

He also claimed the vaccine is against his beliefs because he believes it’s “derived from aborted fetal cells,” and calls that “immoral, illegal, and sinful.”

The National Catholic Bioethics Center says the vaccine is OK because it doesn’t actually contain aborted cells.

Assumption Academy and its church are affiliated with the Society of St. Pius X, a conservative branch of Roman Catholicism that rejects Vatican II reforms, our media partners with the Cincinnati Enquirer say.

They say nearly 90 percent of the schools’ students have religious exemptions against vaccinations. The exemption form warns that the health department can restrict school attendance in case of an infectious disease outbreak.

At the time oft he original lawsuit on April 2, a Boone County judge ruled against the teen and two days later Kunkel and his attorney Christ Weist appealed the decision.

He said he would take their case to the Kentucky Supreme Court if necessary.

Wiest believes he has a case under KRS 446.350 which includes exclusion from activities. That legislation says sincerely held religious beliefs can’t be burdened unless the government shows compelling interest and it’s been the least restrictive means. He says the health department didn’t prove they used the least restrictive means during the hearing.

During the hearing, prosecutors disagreed, saying Kunkel’s right to practice religion doesn’t give him, or any of the other students, a right to put others at risk.

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In May, Wiest announced Kunkel contracted chickenpox. The illness came nearly two months after the health department issued the outbreak order.

Kunkel previously made it known that he was going out of his way to see his friends while banned from school so that they could still play basketball together.

The teen and his lawyer have not released a statement about the court’s ruling.

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