Positive change requires more than a valid argument; it requires political will. In California, the clamor around the measles outbreak at Disneyland led to calls for the elimination of most exemptions from state vaccine requirements. Then in early February, two California lawmakers proposed ending the opt-out policy to mandated school vaccines due to “personal beliefs.” Other states should follow suit. To reduce the incidence of vaccine-preventable diseases, protect those who cannot receive vaccine due to age or medical condition, and protect those at greater risk of severe complications if they do become infected and ill, states should eliminate non-medical exemptions to school vaccine mandates.
Historically, the preservation of the public health has been the primary responsibility of the state and local governments, and the authority to enact laws relevant to the protection of the public health derives from the state’s general police powers. With respect to the preservation of the public health in cases of communicable disease outbreaks, these powers may include the institution of measures such as quarantine and isolation or the enactment of mandatory vaccination laws. Mandatory vaccination laws were first enacted in the early 19th century – beginning with the Massachusetts’ smallpox vaccination law in 1809 – but they became increasingly popular after the measles outbreaks in the 1960s and 1970s.
Generally, states use the Centers for Disease Control and Prevention’s (CDC) schedule of immunizations as a guide, and require children to be vaccinated against a number of diseases on the schedule (including diphtheria, measles, rubella, and polio). Some states go further, however. For example, various state laws also require vaccination against hepatitis B and meningococcal disease for incoming college and university students, and some localities (e.g., Virginia and the District of Columbia) require female students to be vaccinated against the Human Papillomavirus (HPV). In addition, some states and cities have recently begun requiring young children in preschool or daycare to receive influenza vaccinations.
Regardless of the specific vaccinations required, however, every state and the District of Columbia has a law requiring children entering school to provide documentation that they have met the state immunization requirements. In doing so, the states stand on firm constitutional ground.
In Jacobson v. Massachusetts, the U.S. Supreme Court upheld a Massachusetts law that gave municipal board of health the authority to require the vaccination of persons over the age of 21 against smallpox. In upholding the law, the Court noted that “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” The Court added that such laws were within the full discretion of the state, and that federal powers with respect to such laws extended only to ensure that the state laws did not “contravene the Constitution of the United States or infringe any right granted or secured by that instrument.”
The petitioner in Jacobson argued that a “compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such a way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.” The Court, however, was unconvinced that his rights were “contravened” by the mandatory vaccination program and noted that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person, to be, at all times and in all circumstances wholly free from restraint.” However, the Court did acknowledge limits to the state’s power to protect the public health and set forth a reasonableness test for public health measures.
The Court expounded upon this view in 1944 when, in Prince v. Massachusetts, it stated:
[T]he family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parents’ control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.
Despite this, in recent years there has been an increase in state-level rates of non-medical exemptions from vaccination mandates for schoolchildren. All states permit medical exemptions for those whose immune systems are compromised, who are allergic to vaccines, are ill at the time of vaccination, or have other medical contraindications to vaccines. For such an exemption, parents or guardians typically have to provide documentation from a physician. For example, in Colorado, an exemption from the vaccination requirements may be obtained by submitting to the school a certification from a licensed physician that “the physical condition of the student is such that one or more specified immunizations would endanger his or her life or health or is medically contradicted due to other medical conditions.”
Many states, however, also permit parents to avoid requirements to vaccinate their children for non-medical reasons. Nearly all states grant exemptions for persons who oppose immunizations for religious reasons; 19 states, moreover, provide an exemption based on philosophical or moral convictions. Some states specify that religious or philosophical beliefs be “sincere” or “conscientiously held.” But most states vary wildly when it comes to substantiating these claims, with some requiring only a statement of dissent from the student, parent, or guardian, and others requiring a more specific statement regarding the child’s membership in a religious denomination that opposes immunizations.
Medical exemptions to vaccination mandates are completely uncontroversial. But let’s be clear about what non-medical exemptions permit: they allow parents, for completely non-medical (and often unscientific) reasons, to forego safe and effective preventative medicine for their children, thereby endangering them, and those children whom their children come into contact, simply because they adhere to a belief system that belongs in the dustbin of history or because they are systematically misinformed.
The rise in such non-medical exemptions has been a major contributor to recent outbreaks and increase rates of vaccine-preventable diseases. A study in the Journal of the American Medical Association found that children who have been exempted from vaccination requirements were 35 times more likely to contract measles than vaccinated children. At the same time, pertussis – which was once considered “doomed by science” – has made a comeback. In 2012, the CDC reported that there were more provisional cases than in any previous year since 1955; that same year, both Washington state and Minnesota reported pertussis epidemics. While some of this resurgence is attributable to the acellular pertussis vaccine’s diminished long-term effectiveness, there is a substantial body of research showing that the growth of non-medical exemptions has contributed to the rise of pertussis outbreaks in specific communities.
These laws, which permit parents to deny their children medical care because of religious or philosophical decisions, should be repealed. All children deserve rational, science-based medical care. But these exemptions have no legal or scientific basis. They are contrary to the moral sensitivities of the vast majority of Americans, who do provide preventative care for their children. And they put everyone at risk.