Unvaccinated NKY student appealing judge’s ruling on chicken pox case

Updated: Apr. 3, 2019 at 12:54 PM EDT
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UNION, KY (FOX19) - The northern Kentucky Catholic student who sued the health department over their decision to keep unvaccinated students out of school and sporting events amid a chicken pox outbreak spoke about the judge’s ruling Wednesday.

Tuesday, a judge ruled against Jerome Kunkel, 18, and in favor of the Northern Kentucky Health Department.

PREVIOUS | Judge rules against NKY student in lawsuit over chicken pox vaccine

Kunkel sued after he wasn’t allowed to play basketball. He is did not receive the Varicella Virus vaccination because he says it goes against his religious beliefs.

An outbreak of 32 cases of the chicken pox at Our Lady of the Sacred Heart and Assumption Academy prompted the health department to ban all students without proof of immunity from the school for 21 days.

The ban began after the last student or staff member contracted the virus.

Kunkel 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.

Kunkel, a senior at Assumption Academy, has been out of school since March 15.

Wednesday, Kunkel and his attorney Chris Wiest spoke about the decision to appeal the judge’s ruling.

The attorney for Jerome Kunkel, the NKY Catholic student who sued the health department for their decision not to let he and other unvaccinated children attend school or participate in sporting events during a chicken pox outbreak is speaking. Tuesday, a judge ruled against the student. READ MORE >> https://bit.ly/2CULDqW

Posted by FOX19 on Wednesday, April 3, 2019

Wiest lamented that he felt it was unfair that the burden of proof was on he and Kunkel and not the health department.

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

“I’m definitely devastated by the judge’s ruling. It doesn’t seem logical to me,” Kunkel said. He said he felt like they won the case because they made their points.

“What the health department put in play isn’t stopping the spread of chicken pox. We’re still going to church together, we’re still doing everything together,” Kunkel said. “After Sunday masses we normally get together and play a game of pickup basketball with other school kids.”

Wiest echoed Kunkel’s sentiments and agreed that students are still gathering outside of school.

“The 2005 Vatican statement says, you know, the use of these vaccines with aborted fetal cells in them is morally wrong. It’s always going to pose a moral issue, and as a Catholic, we are required in that statement to stand up to these officials and stuff that are making these vaccines, promoting them, and we are supposed to stand up and fight that, especially when it poses this moral issue as it does,” Kunkel said.

Kunkel called doctors ‘amazing’ but wondered why they couldn’t make vaccines that didn’t contain aborted fetal cells.

As the National Catholic Bioethics Center says, the vaccine does not actually contain aborted cells.

Wiest believes it will be three weeks from Tuesday for when unvaccinated students can return to school because of new cases.

He speculated that due to the time outside of the classroom, Kunkel may not get to graduate in the spring. However, Kunkel did say that he was doing homework and tests from home and getting decent grades on them.

There has been no word from the school on if this could or would impact graduation.

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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.

Wiest pointed to a case he feels is similar to Kunkel’s and will help in their appeal.

He said in 2012, there was a case in the Kentucky Supreme Court about license plates on Amish buggies.

Weist said the group fought their conviction because it was against their religious beliefs to have license plates. However, the court was split and the decision was affirmed.

After that case, legislators passed KRS 446.350 saying sincerely held religious beliefs can’t be burdened unless the government shows compelling interest and it’s been the least restrictive means, Wiest says.

He says that was passed so they could overturn the Kentucky Supreme Court’s decision.

Wiest believes he has a case under that legislation which includes exclusion from activities. 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.

“We respect their right under the statute to refuse to be vaccinated. However, that particular form that they signed, that the state prepared, specifically advises them, in the event of an outbreak, your child can be taken out of school.”

The health department released the following statement in reaction to the ruling:

“Today the Boone Circuit Court issued a decision upholding the Northern Kentucky District Health Department’s statutory charge to protect the health and welfare of the community. We are pleased with the Court’s careful and thorough review of the evidence and legal issues posed in this case. The Court’s ruling, which follows on the heels of the Northern Kentucky Health Department receiving national recognition through re-accreditation by the Public Health Accreditation Board, underscores the critical need for Public Health Departments to preserve the safety of the entire community, and in particular the safety of those members of our community who are most susceptible to the dire consequences when a serious, infectious disease such as varicella, is left unabated and uncontrolled.”

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