July 19, 2018
Vaccine Exemptions and the Law

Vaccine Exemptions and the Law

by Berkeley Wellness  

In December 2014, an outbreak of measles began at Disneyland in California, spreading to 17 states and infecting 178 people by March 20. The Centers for Disease Prevention and Control (CDC) says the outbreak likely started with a traveler who became infected with measles overseas, and then visited the theme park. But the virus spread because there are a significant number of parents who don’t vaccinate their children against preventable diseases.

We turned to Dorit Rubinstein Reiss, Professor of Law at UC Hastings College of the Law, to help us explain the state laws that allow parents to skip vaccinations for their children.

Why are so many children in California unvaccinated?

California, like 19 other states, allows parents who have a personal or philosophical objection to vaccination to forego vaccines for their children, and still enroll them in public schools. In addition, 48 states allow people to forego vaccines if they say they have a religious objection to vaccination.

About 13,500 California kindergarten students today have waivers due to their parents' personal beliefs, according to state health statistics (almost 3,000 of those were based on religious beliefs).

In 2012, the state tightened its Personal Belief Exemption by passing a bill which took effect in January 2014. This bill requires slightly more work on the part of parents, who now, before they can use an exemption, have to submit a document signed by a health care provider that says they have received information about the benefits and risks of vaccines and the dangers of preventable diseases. It used to be that all that was necessary was for the parents to file a form stating their opposition.

However, California Governor Jerry Brown also modified the exemption form to add a religious exemption from the signature requirement. Why? "My best understanding is that the change was a response to intensive lobbying by anti-vaccine organizations and the governor's concern about religious values," Reiss says.

Does the US Constitution allow states to mandate vaccination?

"As interpreted in the landmark case Jacobson v. Massachusetts (1905) and every state and federal case since, the Constitution does not prevent vaccine mandates. It does not require them, either. It's up to the states' police power," Reiss says. Nor does the constitution require religious exemptions. Two cases—Prince v. Massachusetts and Employment Division v. Smith—determined that applying a law to those with religious objections does not violate the First Amendment. Each state can decide to grant exceptions or not.

Three cases decided upon by the US Supreme Court support the authority of public health agencies to require vaccination:

  • ​Jacobson v. Massachusetts set the ground for allowing states to mandate vaccination. In 1905, faced with a smallpox outbreak, Massachusetts imposed a $5 fine on those who wouldn't vaccinate. Jacobson refused to vaccinate—and refused the fine. The case went up to the Supreme Court, which decided the fine was constitutional because individual rights have limits when they impact others, and the state can act to protect the community from disease.
  • In the Texas case of Zucht v. King, the parents of 15-year-old Rosalyn Zucht refused to have her vaccinated against smallpox. San Antonio officials expelled her and the court unanimously upheld this decision.
  • In 1944, in a case that looked at child labor laws, not vaccines, the court reiterated that a state can require vaccination of children. It ruled that a parent's rights—or a parent's freedom of religion—do not extend to exposing a child to ill health or death from a disease or exposing the community to outbreaks.

This compelling logic has been upheld in every state and federal case examining the issue since. The combination of public health and children's rights gives states a lot of power to require immunization.

Could states eliminate the personal belief exemption to vaccinations, as proposed in bills currently pending in several states?

States have a lot of leeway under our Constitution. "There is no legal problem with abolishing personal belief exemptions. The question is a political one," says Reiss. "Will the bills pass? This is hard to know; it depends on the politics of the different states."

And while "most states don't force vaccination except in unusual circumstances," Reiss says, a parents' refusal might mean a child could then be denied access to public school.

​Why are some parents refusing to vaccinate their children?

John Swartzberg, MD, chair of the editorial board of BerkeleyWellness.com, is a specialist in infectious disease and has given this question a lot of thought.

"While there is no one answer to this question, the 'tragedy of the commons' gives some insight," he says. This idea was proposed to address population control by the biologist Garrett Harden in 1968. Harden wrote: "Picture a pasture open to all. It is to be expected that each herdsman will try to keep as many cattle as possible on the commons. As a rational being, each herdsman seeks to maximize his gain. Explicitly or implicitly, more or less consciously, he asks, 'What is the utilityto meof adding one more animal to my herd?'"

Harden concludes: "Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit—in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all."

Along this line of thinking, when it comes to vaccination, some parents might think that as long as most in the commons are vaccinated, why take the miniscule risk of immunizing my child? Others being immunized will protect her.

"And what follows is the tragedy: If too many parents take advantage of others being immunized, outbreaks will occur, as we’ve seen in the Disneyland outbreak this year," Swartzberg says. "Freedom has limits."