April 3, 2009
Patrick C. HUFFMAN, N.D., and Amy Reedy-Huffman, C.P.M., Appellants,
STATE of Alaska, Appellee.
[Copyrighted Material Omitted]
Tim Cook, Cook & Associates, Anchorage, Paul H. Bratton, Law Office of Paul H. Bratton, Talkeetna, for Appellants.
James E. Cantor, Chief Assistant Attorney General, Talis J. Colberg, Attorney General, Anchorage, for Appellee.
Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.
All public school children must be tested for tuberculosis. State regulations require the use of a purified protein derivative (PPD) skin test for this purpose. The test may be waived if, in the opinion of a physician, it would be injurious for a particular child.
The appellants, Patrick Huffman and Amy Reedy-Huffman, believe that the PPD test would be injurious for their children. They submitted an affidavit so stating signed by Patrick, who is a naturopathic doctor. The Kenai Peninsula School District found the waiver affidavit insufficient because state regulations require such affidavits to be signed by a physician entitled to practice medicine or osteopathy. Accordingly, the district notified the Huffmans that their children would be excluded from school unless they took PPD tests.
The Huffmans sued the school district and the State of Alaska. They contended that the children were entitled to a waiver and alternatively that the test requirement violated their religious and liberty interests. From a summary judgment rejecting these claims, they now bring this appeal. We hold that although their waiver application was correctly rejected and they did not show that their objections were religiously based, they did present a plausible claim that their fundamental liberty interests were infringed. We therefore remand with instructions to determine whether the Huffmans' fundamental right to make decisions about their children's medical treatment can be accommodated by other tests that are acceptable to them while also satisfying the compelling public health interests of the State.
II. FACTS AND PROCEEDINGS
In August 2006 Patrick Huffman and Amy Reedy-Huffman enrolled their sons Stone and Elias Huffman in fourth grade and kindergarten, respectively, in public schools in the Kenai Peninsula Borough School District. The schools informed the Huffmans that, pursuant to a state regulation, Stone and Elias could only attend if the children had a PPD skin test for tuberculosis or qualified for a medical exemption. A PPD skin test involves injecting a solution containing purified protein into the skin on the forearm; a reaction signifies a latent or active tuberculosis infection rather than the active disease. The Huffmans submitted affidavits to the school district intended to fulfill the requirements for medical exemptions for each son. These documents were signed by Dr. Dawn Lamb, a naturopath, as well as Patrick Huffman. The Huffmans also submitted an objection to the tuberculosis test requirement on religious grounds.
In November the school district's health services department informed the Huffmans that their children were excluded from school as of December 15 or 16 for failure to comply with the state regulation regarding tuberculosis testing. The department sent an additional letter to the Huffmans explaining that " [w]e as a School District are not given any latitude within which to respond to your concern" regarding the PPD skin test because the regulation, 7 Alaska Administrative Code 27.213, requires a statement from an " MD or DO" and " does not include any provision for religious exemption."
The Huffmans filed suit in the superior court alleging that (1) they had complied or substantially complied with the requirement to obtain a medical exemption; (2) they had " a liberty interest, protected by the due process, equal protection, and privacy clauses" of the state and federal constitutions, " to determine matters affecting the health and well-being of their minor children" ; and (3) the regulation violated their religious freedom by excluding their children from public schools unless they allowed their children to undergo a medical procedure contrary to their religious beliefs. Both parents submitted short affidavits to the court; these affidavits contain the only evidence in this case regarding their free exercise claim. Patrick Huffman stated in his affidavit that he sees " religion not only as a stated view of the world, but also as a practice in which my beliefs are part of every aspect of my lifestyle choices" and that one of his " fundamental" beliefs is that " the body [is] a sacred vessel of the soul." Thus, he wrote, " [i]t therefore runs in stark opposition to our religion to introduce a substance into the body which could potentially cause harm without any known benefit to, and in the absence of any known ... danger to our children's health status." In her affidavit, Amy Reedy-Huffman said that it was her " deeply held religious belief that to introduce a potentially harmful substance into a healthy body is wrong and irresponsible."
The State filed a motion to dismiss the Huffmans' claims or, in the alternative, for summary judgment; the Huffmans also filed a motion for summary judgment. The State filed an opposition to the Huffmans' summary judgment motion. In their reply to the State's motion, the Huffmans indicated that they would be willing to have their children take either of two alternative tests for the presence of tuberculosis: a sputum test, which shows the presence of active tuberculosis, and the QuantiFERON-TB Gold test, which they claimed was " at least as effective" as the skin test in detecting latent TB. The superior court granted summary judgment in favor of the State, holding that as a matter of law (1) the Huffmans had not complied or substantially complied with the regulation requiring a PPD test or waiver from a physician; (2) naturopaths were not physicians; and (3) the Huffmans' constitutional claims were invalid.
In December 2006, Before their children were to be suspended from school, the Huffmans requested a preliminary injunction prohibiting the school district from excluding Stone and Elias pending the outcome of the suit. They withdrew that demand four days later because the State and district agreed to allow the children to continue to attend school.
The Huffmans appeal, raising the same claims they presented below.
III. STANDARD OF REVIEW
We review a grant of summary judgment with independent judgment.
Questions of statutory interpretation and constitutional law are likewise reviewed de novo.
7 Alaska Administrative Code (AAC) 27.213 requires, in relevant part, that all students new to a public school district take a PPD skin test for tuberculosis within ninety days of enrolling. The district " shall suspend a child" who does not submit to such a test or provide a health care provider's written and signed statement that the child " is not infectious from tuberculosis to others."  The regulation allows an exemption for any child who provides " the affidavit of a physician lawfully entitled to practice medicine or osteopathy in this state stating the opinion that the PPD skin test to be administered would be injurious to the health and welfare of the child or members of the family or household." 
The Huffmans claim that their waiver from a naturopath fulfills the requirements of this regulation and that the regulation violates their religious freedom, as well as their liberty and privacy interests, under the state and federal constitutions.
A. Waiver from a Naturopath Does Not Fulfill the Requirements of 7 AAC 27.213.
The Huffmans contend that the district should have treated the waiver they submitted, signed by a naturopath, as sufficient to comply with 7 AAC 27.213(f). They argue that the regulation's reference to waiver by " a physician" includes the statement of a naturopath. They rely on Thoeni v. Consumer Electronic Services,  in which we held that a psychologist could be a physician under a statute that stated " ‘ physician’ includes doctors of medicine, surgeons, chiropractors, osteopaths, dentists, and optometrists" because that list was not exclusive. The State believes the text of the regulation at issue here-the waiver must be signed by " a physician lawfully entitled to practice medicine or osteopathy" -excludes naturopaths.
The statutory framework and language governing the practice of medicine and naturopathy make clear that a naturopath's signature is not sufficient for purposes of a 7 AAC 27.213(f) waiver. Chapter 64 of the state's statutory code, " Medicine," defines the " ‘ practice of medicine’ or ‘ practice of osteopathy’ " as providing diagnosis of or treatment for a mental or physical condition for a fee or other consideration, as well as " to use or publicly display a title in connection with a person's name including ‘ doctor of medicine,’ ‘ physician,’ ‘ M.D.,’ or ‘ doctor of osteopathic medicine’ or ‘ D.O.’ "  Chapter 45 of the code, " Naturopaths," defines naturopathy as " the use of hydrotherapy, dietetics, electrotherapy, sanitation, suggestion, mechanical and manual manipulation for the stimulation of physiological and psychological action to establish a normal condition of mind and body."  The legislature has forbidden any person practicing naturopathy from " us[ing] the word ‘ physician’ " in his title. The licensing requirements for practicing medicine and practicing naturopathy are distinct and contained in these separate chapters of the code. Whereas a medical doctor must have attended an accredited medical school and completed a hospital residency or
internship of sufficient length, naturopaths need only have graduated from an accredited school of naturopathy and passed a licensing examination. Because of these significant distinctions in the training and practice of physicians and naturopaths, in addition to the specific language of the regulation, we conclude that the regulation's requirement cannot be fulfilled by a naturopath. Thus the Huffmans did not comply with 7 AAC 27.213(f).
B. 7 AAC 27.213 Does Not Infringe on the Huffmans' Free Exercise of Religion.
The First Amendment of the U.S. Constitution and article I, section 4 of the Alaska Constitution protect religious freedom. The Huffmans argue that the application of 7 AAC 27.213 to their family violates these protections. The Huffmans claim that their religious beliefs prohibit harming the body, and the regulation unconstitutionally burdens the practice of that tenet by preventing their children from attending school unless they submit to a test that inserts a foreign substance into their children's skin.
A valid, neutral, generally applicable law cannot violate the free exercise clause of the federal constitution. The regulation at issue here falls into that category and so is not invalid under the First Amendment.
We apply the Alaska free exercise clause differently. In Frank v. State,  we articulated a threshold test for finding a violation of religious freedom under the Alaska Constitution, writing that " [t]he free exercise clause may be invoked only where there is a religion involved, only where the conduct in question is religiously based, and only where the claimant is sincere."  Our opinion in Frank did not directly address the preliminary question of whether a religion was involved; our analysis focused on the second prong of the test, relying on " impressive evidence concerning the religion of the Central Alaskan Athabascan people" to determine that moose hunting was a necessary component of a religious ceremony.
Federal cases have considered whether a nontraditional belief system is sufficient to constitute a religion under the free exercise clause and so are instructive here. The United States Supreme Court has emphasized that a personal philosophy is not equivalent to a religion. Subsequent United
States Courts of Appeals cases have endeavored to provide a more concrete definition, focusing on how broad and fundamental an individual's set of expressed beliefs are by considering factors such as whether the premises of the religion relate to ultimate questions and whether there are rituals or other activities associated with it. The Huffmans do not profess to subscribe to any organized religion. They rely solely on their affidavits as evidence of their nontraditional religious beliefs. Their statements use the terms " religion" and " religious beliefs," but they discuss only an opposition to putting harmful substances into the body. The record provides no indication that the Huffmans' feelings are connected to a comprehensive belief system, set of practices, or connection to ideas about fundamental matters. Without such assertions or evidence, we believe summary judgment on this issue was appropriate.
C. Questions Remain as to Whether 7 AAC 27.213 Unconstitutionally Infringes on the Huffmans' Privacy Interest in Making Decisions About Their Children's Medical Treatments.
The Huffmans also argue that 7 AAC 27.213 interferes with their liberty and privacy interests under article I, sections 1 and 22 of the Alaska Constitution. The analysis required to resolve an individual rights claim depends upon the type of right asserted. We described the appropriate inquiries in Myers v. Alaska Psychiatric Institute,  a case contesting on liberty and privacy grounds the state's power to administer psychotropic medications without a patient's consent:
We determine the boundaries of individual rights guaranteed under the Alaska Constitution by balancing the importance of the right at issue against the state's interest in imposing the disputed limitation. When a law places substantial burdens on the exercise of a fundamental
right, we require the state to " articulate a compelling [state] interest" and to demonstrate " the absence of a less restrictive means to advance [that] interest." But when the law " interferes with an individual's freedom in an area that is not characterized as fundamental," we require the state to " show a legitimate interest and a close and substantial relationship between its interest and its chosen means of advancing that interest." []
Thus, the threshold question is whether the Huffmans are asserting a fundamental right. They argue that " there is no more fundamental right than that of a person to choose what substances will be taken or introduced into the body."  The State does not expressly dispute that claim, but it does emphasize the distinction between Myers, in which there was evidence that psychotropic medications could be harmful, and the Huffmans' case, which does not include such evidence.
In Myers we held that " [b]ecause psychotropic medication can have profound and lasting negative effects on a patient's mind and body, ... statutory provisions permitting nonconsensual treatment with psychotropic medications implicate fundamental liberty and privacy interests."  The potential harm to patients was not necessary to our analysis, however. We had already also held that the Alaska Constitution protects as fundamental rights the ability of every individual to control her hairstyle  and to make her own reproductive choices. We believe controlling one's medical treatment falls into the same category of personal physical autonomy. We now hold that the right to make decisions about medical treatments for oneself or one's children is a fundamental liberty and privacy right in Alaska. 
Because we are considering a burden on a fundamental right, we next inquire whether the State has met " its substantial burden of establishing that the abridgment in question was justified by a compelling governmental interest."  The State contends that it has a compelling interest in preventing the spread of tuberculosis and believes that its goal outweighs the Huffmans' interest in avoiding the PPD skin test. The Huffmans do not appear to contest that a compelling interest exists, instead focusing on whether the regulation uses the least restrictive means to achieve its objective. We believe that the State has a compelling interest in preventing schoolchildren from spreading tuberculosis.
The final step in a privacy analysis is to inquire whether the State has demonstrated that " no less restrictive means could advance" the compelling interest it has articulated. The State has argued that " [t]esting for latent TB infection through a PPD skin test is the least restrictive means to achieve this interest because, at present, it is the only means available to test for that latent infection." The Huffmans claim, however, that 7 AAC 27.213 does not meet this standard, describing two alternative tuberculosis tests that do not require inserting any substance into the body. They first refer to the sputum test, which indicates the presence of an active tuberculosis infection. Because PPD skin tests, by contrast, reveal latent infections and can thus prevent exposure to other children Before a tuberculosis-infected student becomes contagious, we are unsure if the sputum test achieves the purposes of 7 AAC 27.213. The Huffmans also discuss the QuantiFERON-TB Gold (QFT-G) test, which tests for latent tuberculosis infections in a blood sample taken from a patient. The QFT-G test, though approved by the federal Food and Drug Administration, is apparently not available in Alaska. The Huffmans express a willingness to travel with their children out of state to have it administered.
We do not have sufficient facts regarding the efficacy of the QFT-G test to rule on this question. The only information about the test in the record Before us is a short fact sheet, available on the internet, from the Centers for Disease Control. We recognize that it is a less restrictive alternative from the perspective of the Huffmans but cannot say whether it falls importantly short of the goals achieved by administration of the PPD skin test. If it does, the superior court should consider evidence regarding other accommodations, such as annual sputum tests, to determine if they adequately meet the State's needs without unnecessarily infringing on the Huffmans' rights. If the QFT-G test or another type of test does not fail to meet the State's goals, the superior court must conclude that the relevant test is an acceptable accommodation the Huffmans' children can use to fulfill the tuberculosis testing requirement for school attendance.
We AFFIRM the superior court's grant of summary judgment to the State regarding the Huffmans' regulatory and religious freedom claims. We REVERSE and REMAND for consideration of less restrictive alternatives its grant of summary judgment to the State regarding the Huffmans' liberty and privacy claim.