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JURIST Guest Columnists James G. Hodge Jr. and Kim Weidenaar of the Sandra Day O’Connor College of Law, Arizona State University, discuss the recent news on California and other states’ lawmakers’ efforts to propose strict vaccination legislation, and the current vaccine exemption issues in the US…
The US public health system is bracing for yet another year of avoidable infections, associated injuries and potential deaths stemming from limited outbreaks of communicable conditions that, just years ago, were nearly wiped out. This year, over a hundred measles infections arising from a single index case at Disneyland are the public health “cause celebre.” Last year it was thousands of whooping cough cases. Next year, who knows?
What we do know is that until a root cause of these cyclical outbreaks is addressed, they will recur and threaten the lives of infants, toddlers and other vulnerable persons. At the source of these outbreaks are increasing numbers of caregivers choosing to delay or forgo safe and effective vaccinations for their children. These vaccinations are approved by the Food and Drug Administration (FDA) and laid out in a regularly-updated schedule [PDF] through the Centers for Disease Control and Prevention Advisory Committee for Immunization Practices. State and local governments require childhood vaccinations prior to admission to daycare facilities and schools. These requirements, however, may be legally bypassed through medical, religious or philosophical exemptions in many jurisdictions.
Public health officials denote how rising numbers of unvaccinated children breach “herd immunity” for common, infectious diseases like measles. Concentration of unvaccinated persons in specific neighborhoods or school districts only exacerbates the problem, creating opportunities for vaccine-preventable diseases to easily take hold. Still, exemptors posit multiple justifications for opting out. They fear that childhood vaccinations may cause dangerous and debilitating conditions. While it is true that there is some risk of an adverse reaction with vaccines, just as with any medication, these fears are scientifically unfounded and largely debunked. Worrying about the risk of vaccines ignores the real risk to kids and the community posed by the infectious diseases that vaccinations can largely prevent. Other justifications include that vaccinations may be: (1) contrary to their sincere religious beliefs; (2) inapposite to their philosophical beliefs and (3) easier to avoid legally than receive. Each of these points has merit. Even though childhood vaccinations are one of the great public health achievements in the last century, they are treated as mere options in many states. Getting vaccinated (or not) is a public health choice, much like selecting whether to wear a seatbelt (required in 2/3 of the states) or bike helmet (mandated in less than half the states). This was not always the case concerning vaccinations and some suggest the status quo is primed to change.
The Current Slate of Vaccination Exemptions
The history of vaccination exemptions is pocked by a series of legal and policy trends. Initially, state and local governments issued vaccination requirements to thwart outbreaks of smallpox, polio and other lethal or disabling infections, despite sometimes murky science as to the safety and efficacy of the vaccines themselves. Historically, many public health laws mandated that persons receive the vaccine or pay a fine, be subjected to isolation or quarantine or face incarceration. These early requirements had few, if any, recognized exceptions. It was not until 1905 in Jacobson v. Massachusetts that the US Supreme Court clarified that individual liberty interests justified vaccination exemptions for persons who were medically “unfit candidates,” because the vaccination may directly impair their health. Today, all states permit medical exemptions, typically limited to the period for which one’s contraindication to the immunization exists.
As school vaccination requirements increasingly became the standard, select state legislatures and courts debated whether persons with religious objections were exempt pursuant to First Amendment Free Exercise principles. The US Supreme Court has never clarified whether states have to provide religious exemptions to school immunization requirements (although in dicta the Court noted in Prince v. Massachusetts that “the right to practice religion freely does not include liberty to expose the community or the child to communicable disease.”). Still, forty-eight states (excluding only Mississippi and West Virginia) recognize religious exemptions via legislative or judicial routes. Atheists, agnostics or others who simply objected to vaccination achieved similar protections largely through state legislation providing “philosophical or personal belief” exemptions. Twenty states feature these exemptions for school-age children (Missouri limits its philosophical exemption to children enrolling in daycare or preschool).
These policy shifts occurred despite concerns of health officials who accurately prophesized that the risk of childhood infectious diseases would rise as the number of exemptors increased. The public health reality is that the lawfully-recognized choices of a relatively small percentage of caregivers to reject vaccines threaten the health of thousands of others, especially infants and others vulnerable persons unfit for vaccination.
States Reconsider Their Policies on Vaccination Exemptions
In hopes of increasing vaccination rates, many states seek to eliminate philosophical or personal belief exemptions (including based on religion in some places) or at least ramp up the procedures needed to obtain one. In February 2015, several California state senators announced plans to repeal existing non-medical exemptions. As of January 1, 2014, California required caregivers seeking a non-medical exemption to first discuss the benefits and risks of immunization, as related to the dangers of communicable diseases, with health care practitioners. While this policy change reduced the number of exemptions, the rates are still high [PDF] in many areas. The anticipated legislation would eliminate all personal and religious exemptions, impacting nearly 15,000 kindergarteners who received non-medical exemptions in 2012. The bill would require schools to publicize their vaccination rates (without identifying specific exemptors). For places like a charter school in Sacramento, with purportedly less than 50% of kindergarteners vaccinated, this could seriously influence parental choices whether to enroll their own children.
Lawmakers in Maine and Vermont plan to propose legislation that would repeal philosophical exemptions in their states. Other state legislatures have already introduced similar bills. Washington State House Bill 2009 [PDF] aims to remove the state’s philosophical exemption. If passed, Washington would permit medical exemptions when certified by a health care practitioner and religious exemptions based on the caregiver’s attested religious beliefs. Since religious exemptions account for less than 10% of Washington’s nonmedical exemptions, abolishing the philosophical exemption alone would predictably increase vaccination rates.
Instead of abolishing existing exemptions, which could be politically divisive, some state legislators propose to beef up the process required to obtain exemptions. Modern vaccination laws, stemming in part from measles outbreaks in the 1960s and 1970s, were enacted after legislatures witnessed lower incident rates of measles in states where such laws were in place and strictly enforced. As measles rates increased over the past decade, many jurisdictions responded in kind by making it harder to opt out of vaccination requirements. Though exemption rates decreased in these jurisdictions, they still face high numbers of exemptors as evidenced by current outbreaks of vaccine-preventable conditions and legislative pushes to remove exemptions. Over the past few years, states like California (as noted above), Michigan, Oregon, Vermont and Washington amended laws to require caregivers to undergo education regarding their decision to forgo vaccination or to discuss the decision with their health care provider. A bill in Minnesota would make the exemption process more difficult by requiring caregivers to discuss the risks and benefits with a physician and obtain a signed statement from the physician. Maine legislators have proposed a similar bill.
Countering these legislative maneuvers is an array of opposing views. Mississippi, often ranked as one of the worst states for many health measures, has the highest percentage of vaccinated kindergarteners in the country due to its “no nonsense” vaccination policy. As noted, no one in the state can currently obtain an exemption based on religious or philosophical grounds. However, several Mississippi lawmakers have proposed a bill to allow physicians to grant medical exemptions without any additional authorization required from the department of health. In addition, recently-proposed bills in Montana and New York would add philosophical exemptions to existing religious and medical exemptions.
A Legal Shift Back To Protecting the Public’s Health?
Vaccinations are among the greatest achievements in public health history. However, their effectiveness is premised on the breadth of their use across populations. Lower vaccination rates correlate directly with higher numbers of outbreaks. Higher numbers of outbreaks correlate with more permissive immunization laws allowing easily-obtained exemptions, particularly when based on personal beliefs. To the extent that formal religions that actually preclude providing medical treatment or vaccination in this country are rare, recognizing religious-based exemptions pursuant to the First Amendment does not pose imminent risks to the public’s health. Statutory recognition of personal belief exemptions, however, more seriously impacts the public’s health. A 2011 study indicated that states with philosophical exemptions had non-medical exemption rates 2.54 times higher than states with only religious exemptions.
Ramping up the process for obtaining philosophical exemptions, as proposed in some states, may tamp down on the number of persons electing them while still preserving respect for ones’ choice, but may also disproportionality affect low-income caregivers. Increased process often implicates additional costs and time, both of which less wealthy caregivers may lack, resulting in an “upper crust reservation” for such exemptions. Many laws imposing enhanced process requirements have similar impacts, but there is no public health justification for effectively denying caregivers of lesser means the opportunity to opt out of vaccinations, unlike their wealthier neighbors. That is not only unfair, it is counter-intuitive to the public’s health. To the extent there is no constitutional support for personal belief exemptions, and use of these exemptions (even in states imposing educational or other process requirements) is directly responsible for the spread of controllable infectious diseases, their repeal is worthy of consideration.
James G. Hodge, Jr., J.D., LL.M., is the Associate Dean for Grants and External Funding, Professor of Public Health Law and Ethics, Director, Public Health Law and Policy Program at the Sandra Day O’Connor College of Law at Arizona State University (ASU); and Director, Western Region Office, Network for Public Health Law.
Kim Weidenaar, J.D., is a Fellow with the Public Health Law and Policy Program at the Sandra Day O’Connor College of Law at Arizona State University (ASU); and Deputy Director, Western Region Office, Network for Public Health Law.
Suggested citation: James G. Hodge, Jr., Kim Weidenaar, Reconsidering Vaccine Exemptions to Advance the Public’s Health, JURIST – Academic Commentary, Feb. 18, 2015, http://jurist.org/academic/2015/02/James-Hodge-Kim-Weidenaar-Reconsidering-Vaccine-Exemptions.php.
This article was prepared for publication by Yuxin Jiang, an Assistant Editor for JURIST Commentary service. Please direct any questions or comments to her at commentary@jurist.org