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A Northern Kentucky high school student is suing his local health department after he was told he couldn’t play for his basketball team — and later that he could not attend school — because he was not vaccinated for chickenpox.
The lawsuit filed on behalf of 18-year-old Jerome Kunkel, a student at Assumption Academy in Walton, was filed against the Northern Kentucky Health Department Thursday in Boone Circuit Court, according to court records. It says that Kunkel has not been vaccinated for chickenpox because receiving a vaccine that contains aborted fetal cells is against his religion.
After Kunkel’s initial lawsuit was filed accusing the health department of preventing Kunkel from playing with his basketball team, the health department issued a second directive the next day. The second directive banned students who are not vaccinated and not immune from chickenpox from attending the school altogether “for a period of 21 days following the last suspected incident” of chickenpox.
The health department’s directives applied to Assumption Academy and Our Lady of the Sacred Heart Elementary, which are both operated by Our Lady of the Assumption Church.
An amended complaint in Kunkel’s lawsuit filed on Friday accuses the health department of issuing the second directive out of retaliation for the original filing of Kunkel’s lawsuit.
“Although we have been working with the school to contain the illnesses since February, the Health Department has recently seen a concerning increase in the number of infected students at the school which has prompted us to take further control measures at the school and to make the public aware that chickenpox may be in the community,” Dr. Lynne Saddler, district director of health at the Northern Kentucky Health Department said in the Thursday press release.
Christopher Wiest, attorney for Kunkel, said he has been approached by parents of other students at Assumption Academy and expects others to take legal action in response to the bans.
The dispute began around Feb. 22, when the school’s principal was allegedly informed by the health department that students could not participate in extracurricular activities unless they were tested for chickenpox and it was determined they were immune from it, according to the complaint.
After Kunkel and other students who had not been vaccinated were told they could not participate in extracurricular activities, Kunkel’s father met with officials at the Northern Kentucky Health Department. The lawsuit filed on behalf of Jerome Kunkel alleges that the conversation “made clear” that the ban “was motivated and put in place to punish the parishioners at Assumption and at the school, for their vaccination beliefs, and not due to an actual concern for public health.”
The fetal cells used to grow the chickenpox virus were obtained from elective termination of two pregnancies in the early 1960s and those cells are the only ones used to make the vaccine today, according to the Children’s Hospital of Philadelphia.
Several of the students who have not been vaccinated for chickenpox at the school have received other vaccinations that do not contain aborted fetal cells, Wiest said.
Kunkel was tested for chickenpox on Feb. 22 and allowed to play basketball that night. On Feb. 23, the family was told by school leadership that Kunkel could not play in any games or participate in any other extracurricular activities.
The lawsuit says Kunkel was a “pivotal member” for the basketball team at the private Catholic school.
“The fact that I can’t finish my senior year in basketball, like, our last couple of games, it’s pretty devastating,” he told WLWT. “I mean, you go through four years of high school playing basketball you look forward to your senior year.”
The health department first sent letters to parents of Assumption students Feb. 5 and again on Feb. 21 informing them about the outbreak of the illness.
A “concerning increase in the number of infected students” led to the last announcement from the health department Thursday that unvaccinated students were prohibited from attending school for three weeks, according to the letter. Proof of either vaccination or immunity was required for students to attend school.
From Feb. 24 to March 14, the number of chickenpox cases at the school increased from 19 to 32, the health department said.
The lawsuit alleges that the Kentucky Department of Public Health never issued an emergency regulation for the immunization of students and staff at Assumption.
Kunkel’s attorney has filed a motion for injunction in the case that is scheduled to be heard on April 1.