Montana’s effort to expand religious exemptions to vaccines prompts political standoff

Montana lawmakers are in a standoff with the state’s health department over a package of sweeping changes to child care licensing rules that includes a disputed provision to allow religious exemptions to routine vaccinations for children and workers.

Both Republican and Democratic legislators on the Children, Families, Health, and Human Services Interim Committee voted on Jan. 18 to renew their informal objection to the proposed child care licensing rules, which the committee has blocked since November. The vote prevents the state’s Department of Public Health and Human Services from adopting the rules until at least March when committee members say they will debate a formal objection that could delay the rules’ adoption until spring 2025.

Committee members renewed their objection after complaining that health department officials had not contacted them to discuss revisions to the proposal.

“It’s really quite frustrating to see some necessary rule changes that providers in our communities are really asking for, along with other rule changes that are burdensome and unnecessary,” said Democratic Rep. SJ Howell, the vice chair of the committee, during the hearing. “I do hope we can find a path forward.”

Health department leaders have not decided on a course of action, spokesperson Jon Ebelt said in an email.

“We anticipated that the interim committee would extend its informal objection to our child care rules package and we continue to weigh options,” Ebelt said. “Increasing access to affordable, high-quality child care for hardworking Montana families remains of utmost importance to us.”

Child care providers are frustrated by the delay of what they say are much-needed changes to the child care licensing rules. The package would simplify the licensing process, reduce paperwork required from providers and parents, and create a new type of license for providers who operate outside of school hours, among other changes. Rachel Wanderscheid, the director of the Montana Afterschool Alliance, told the committee that the rules have been in the works for at least three years and that the panel should let them move forward.

“They are good for providers, they are good for families,” she said. “There are a couple of different areas of contention, but I would say overall — 95% — they’re great.”

The most contentious provision in the 97-page rules package would require large child care facilities to enroll children who, for religious reasons, have not been vaccinated. Montana, like 44 other states, already allows religious exemptions from immunization requirements for school-age children. But this proposal would add a religious exemption to its immunization requirements for younger kids in the state.

Health care advocates worry that, if more parents claim vaccine exemptions, levels of community immunity to preventable infectious diseases, such as measles and pertussis, will drop and result in outbreaks.

The health department’s proposal also would eliminate a requirement that child care facilities send home infected and unvaccinated children and staffers when someone at the facility becomes sick with a vaccine-preventable disease.

Health department officials originally proposed the vaccine rules in 2022. The committee blocked the proposal then, too. In response, the department said it would not enforce the ban on religious exemptions.

In November, KFF Health News was the first to report that health department officials had tucked the exemption 45 pages into the draft licensure rules. Department officials said then that the rules package was needed to align with laws passed by the Legislature in 2021 and 2023. One law, the Montana Religious Freedom Restoration Act, generally prohibits the state from infringing on a person’s right to the exercise of religion. Another act bans discrimination based on vaccination status.

Mississippi began allowing similar exemptions for schools and child care centers in July following a court ruling that the state’s lack of a religious exemption violated the U.S. Constitution’s free exercise clause. But other states, including California, New York, Connecticut and Maine, have removed religious exemption policies during the past decade.

The American Academy of Pediatrics has called for the elimination of nonmedical vaccine exemptions, arguing they are “inappropriate for individual, public health, and ethical reasons,” according to a 2016 policy statement.

The Montana health department has the option of waiting out the legislative committee’s objections and adopting the rule. An informal objection by the committee can be renewed for up to six months, after which the department can implement the rule. In this case, that renewal option would expire in April.

But if the committee votes to make a formal objection, the rule can be blocked until the end of the next legislative session, in spring 2025, said Maddie Krezowski, an attorney for the Legislature. That would give lawmakers a chance to address the law underlying the rule during the session.

The committee also could file its formal objection with the secretary of state to be published with the adoption of the rule, creating implications for any legal challenges that follow. The burden of proof in court would shift from anyone potentially suing the health department to the department itself, Krezowski said.