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Chris Jan. 28, 2015

Anti-vaxxing: the hottest trend since bloodletting! The recent outbreak of measles (that still exists!?) at Disneyland brought the latest deserved negative attention on an idea that just won’t die. There are parents who refuse to have their young children vaccinated against dangerous yet preventable childhood diseases. Many cite religious reasons. Others claim some philosphical objection likely based on misinformation (E.g. “They cause autism!” They contain gluten!”). As a result of this idea (it’s not a trend; the vast majority of children do receive vaccinations), some of thse diseases are making deadly comebacks. When they do it is not just the anti-vaxxer unvaccinated that get sick, it is also those who cannot be vaccinate for legitimate medical reasons or those for whom the vaccination just doesn’t work, which is a possibility. Now onto the law.

What laws require children to be vaccinated? There is no federal requirement. All fifty states and many municipalities within them require childre to be vaccinated against certain diseases–almost uniformly following the CDC’s recommendations–before starting school. Not all children receive all vaccinations. Every state allows for medical exemptions, which often require documentation by a physician. All but four states–Arizona, California, Mississippi and West Virginia–allow for exemptions on religious grounds. Of those four, both Arizona and California allow for philosphical or personal objections which can include religious reasons. A number of other states explicitly permit philsophical objections. The CDC has a chart here. Connecticut exempts only on religous grounds.

The authority of states to mandate vaccinations derives from their police power under the Constitution. The U.S. Supreme Court first upheld this power in Jacobson v. Massachusetts, 197 U.S. 11 (1905), way back in 1905. The city of Cambridge had instituted a mandatory vaccination program against small pox for all inhabitants, children and adults. Justice Harlan’s majority opinion asserts

But 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 freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.

In 1922, in Zucht v. King, 260 U.S. 174 (1922), the Supreme Court first followed Jacobson and upheld a law that required all children to be vaccinated in order to attend school, either public or private.

The religous and “philsophical” exemptions in are not Constitutional rights but creations of statute. Under the present law a state may repeal such an exemption. Courts have upheld Mississippi’s and West Virginia’s absense of religious exemptions. The United States Supreme Court has not decided the issue. The Mississippi Supreme Court, in Brown v. Stone, 378 So.2d 218 (1979), had this to say

The exception, which would provide for the exemption of children of parents whose religious beliefs conflict with the immunization requirements, would discriminate against the great majority of children whose parents have no such religious convictions. To give it effect would result in a violation of the Fourteenth Amendment to the United States Constitution which provides that no state shall make any law denying to any person within its jurisdiction the equal protection of the laws, in that it would require the great body of school children to be vaccinated and at the same time expose them to the hazard of associating in school with children exempted under the religious exemption who had not been immunized as required by the statute.

That is one of the best defenses of the freedom from religion that I have seen. I don’t think there should be exemptions, other than valid medical reasons, from vaccination requirements. Although it would appear that the Religous Freedom Restoration Act and recent Burwell v. Hobby Lobby decision would strengthen a challenge to a full mandate, note that the law does not grant religous objections to all laws: a state or the federal government can still prevail under the compelling interest test and probably would considering that the public health is perhaps the most compelling of all government interests.

Those who know me offline are probably wondering where my vaccination advocacy came from. I have never received a flu shot and declined all of the vaccinations offered in college and law school. It isn’t hypocritical at all. First, I declined optional vaccinations (neither Massachusetts nor BC required the meningitis vaccine when I entered college, as many states and schools do and probably did then). There was no public health need for them. Flu shots must be received annually and are recommended for people who can’t handle the flu, such as the elderly. I did however receive all of my childhood vaccinations–on top of not having any relgious objections, my mother is a biostatistian and studied epidemiology–and will vaccinate the children I might eventually have. There are reasons states require and the CDC recommends children be vaccinated and the reasons are very good.

We probably will not see another adult vaccination requirement as we did with small pox. Fortunately, many of the deadly diseases of yesteryear (small pox, measles, polio) have been wiped out and treated through vaccines and other public health efforts.