God, country and chickenpox: How an outbreak entangled one school in a vaccine showdown

Bill Kunkel used to vaccinate his kids, before he read where some vaccines come from.

He is skeptical of the pharmaceutical industry's motives and came across anti-vaxxer theories online, though they aren't supported by science. But his main objection is about abortion. Decades ago, cells were taken from legally aborted fetuses to create some vaccines. Kunkel is Catholic. Vaccines derived from an abortion are, in his mind but not the church's, immoral.

So he and his wife chose not to vaccinate their fourth child, Jerome — including for chickenpox.

Years later, that decision has positioned the Kunkels and their now 18-year-old son as the latest face of the nation’s anti-vaxxer movement — and the tension between individual liberties and the public good. Since Feb. 5, Jerome’s K-12 Catholic school, Assumption Academy, has been experiencing an outbreak of Varicella zoster — the virus commonly known as chickenpox.

The Northern Kentucky Health Department intervened, banning unvaccinated kids like Jerome from the classroom and athletic events until the virus is contained. And Jerome, a senior and the starting center on the school basketball team, was forced to miss their playoff game. His team lost by one point, ending the season.

Now, the Kunkels are suing, a move that has thrust religion, the Constitution and health policy into a battle over church and state.

"This is tyranny against our religion, our faith, our country," Bill Kunkel told The Washington Post.

Jerome Kunkel has not contracted chickenpox, but officials at the Northern Kentucky Health Department say at least 32 other children have shown symptoms of the highly-contagious illness, which covers the skin in a blisterlike rash and causes fever. The Varicella virus can be especially dangerous, even deadly, for infants, pregnant women or those whose immune system is already compromised.

Over the last month, health officials have taken steps to keep the outbreak from spreading. First, they announced that unvaccinated students could not participate indefinitely in extracurricular activities, including athletic events, because the risk of exposure was too high.

Then, last Thursday, they banished unvaccinated students from school grounds altogether.

The move was "in direct response to a public health threat," the Northern Kentucky Health Department said.

(Courtesy of Bill Kunkel) Jerome Kunkel, 18, with his father, Bill Kunkel. Their family is suing the Northern Kentucky Health Department claiming officials violated Jerome's first amendment rights when it banned him from school and extracurricular activities because he has not been vaccinated for the chickenpox.

But for the Kunkels, the decision felt personal - an infringement, they say, upon their individual rights and religious freedom.

The Kunkels filed their lawsuit Thursday in the Boone County Circuit Court alleging that the Northern Kentucky Health Department had violated Jerome's first amendment rights. Accepting the chickenpox vaccine would be "immoral, illegal and sinful," they said, according to their Catholic beliefs. The lawsuit also alleges that the health department violated due process when officials enacted the extracurricular and school attendance bans without declaring an official emergency, which would have triggered the involvement of the state legislature.

The lawsuit alleges that health department officials showed particular animus to the Kunkel family during one-on-one meetings, leading the Kunkels to believe the bans were the result of religious discrimination.

The Kunkels' attorney, Chris Wiest, said he has been approached by more than a dozen other families who want their children to be added as plaintiffs in the lawsuit. Wiest said many of the children at Assumption Academy have not been vaccinated for chickenpox.

"This is a gift-wrapped establishment clause case," Wiest said.

Officials from Assumption Academy and Our Lady of the Assumption Church did not respond to requests for comment from The Washington Post.

The health department has issued two statements acknowledging the lawsuit and denying its claims, but declined an interview request because of the pending litigation.

The bans are "consistent with this agency's statutory charge to protect the public health," officials said in one statement. The agency also shared copies of three informational letters sent to parents and school staff - on Feb. 5, Feb. 21 and March 14 - to combat what they consider a misleading narrative that Wiest and other community members had shared on social media.

"It is unfortunate when social media is used as a weapon for misinformation to advance litigation agendas and to undermine our mission to protect public health," the department statement said.

The Kentucky statute that governs state health departments allows health officials to take action or adopt rules that could prevent the spread or introduction of infectious diseases, including enforcing quarantines "as it deems proper."

The statute also provides guidelines for navigating public health concerns when religion is a factor, saying that Kentucky law cannot be "construed to require the immunization of any child whose parents are opposed to medical immunization against disease, and who object by a written sworn statement to the immunization of such child on religious grounds."

What's at stake is whether health officials overstepped those statutory duties in their pursuit to protect the public.

Kunkel said he wants the school and health officials to "look out" for the well-being of the community.

"But doggone," he said, "they don't have to be tyrants about what they want to do."

The Kunkels began seeking legal recourse last month, pleading with the school and with health officials to end the ban so Jerome could finish his senior season, Kunkel said. But health officials balked.

On March 14, the Kunkels filed their lawsuit — and hours later the health department issued its last letter, which said that students without proof of vaccination or immunity against the Varicella virus were not permitted to come to school until 21 days after the onset of rash for the last ill child or staff member.

Wiest, the lawyer, said he has since amended their lawsuit, claiming the final letter was "at the heart of a first amendment retaliation claim."

A hearing on the lawsuit is scheduled for April 1, when a judge will rule on an injunction filed by the Kunkels' lawyer asking to end the bans.

Many of the parents at Assumption, including the Kunkels, attribute their moral opposition of vaccines with fetal tissue origin to Catholic doctrine. But the church ruled nearly 15 years ago that Catholics are morally free to use those vaccines when there's a threat to public health. Catholic leaders have also encouraged those uncomfortable with the vaccine origin to encourage drug manufacturers to create a version of the vaccine not derived from aborted fetal cells.

The Varicella vaccine, specifically, is derived from the cell lines of two fetuses that were electively aborted in the 1960s. "There are no further abortions that have occurred to continue these cell lines," said Josh Williams, an assistant professor of pediatrics at the University of Colorado, Denver who studies the influence of religion on vaccine decisions.

"This highlights the need for us to continue to partner with and engage with religious leaders around the conversation about vaccinations," Williams said. "Clergy can be really powerful advocates for vaccinations."

Kunkel said he is aware of the Church's ruling on vaccines derived from fetal tissue.

"That doesn't mean nothing to me," Bill Kunkel said. "I follow the laws of the Church, and I know what's right and wrong."

Abortion, he said, is a moral absolute.

The school canceled class on Friday and Monday and avoided interacting with reporters during a parent meeting last week about the outbreak chaos.

It's unclear if vaccinated students will return to school this week and how unvaccinated kids will go about their studies during the quarantine.

Jerome Kunkel said he's not sure how he'll fill his time. He cleaned out his car, he said, and will likely begin practicing baseball with a teammate also kept from school by the ban. Three weeks is too short a time span to get a job, the high school student said. And he's nervous about falling behind in class.

"He's being penalized because he's a healthy child," Bill Kunkel said. "He may not ever get chickenpox."

Kunkel said he attended "chickenpox parties" as a child and took his own kids to one at his brother's house. The so-called parties are a common way for parents to expose their kids to the virus all at once.

But health officials strongly urge parents not to do this because the virus can cause unpredictable and severe reactions. The Northern Kentucky Health Department recommend the vaccine in each of their letters to parents at Assumption Academy.

Before the Varicella vaccine was created, about 4 million people each year were infected in the United States, according to the Children’s Hospital of Philadelphia. Now, just 12,000 people contract the infection - about a 99 percent decrease.