Vindicating the Vaccine: Injecting Strength into Mandatory School Vaccination Requirements to Safeguard the Public Health

Boston College Law Review, Jan 2016

An outbreak of measles in California in early 2015 triggered a nationwide discussion about childhood vaccination requirements and the growing “anti-vaccination” movement that has gained traction in certain parts of the country. Proponents of vaccination point to the real danger vaccine-preventable diseases pose and the need to bolster “herd immunity” through aggressive vaccination practices. Meanwhile, opponents decry vaccination predominantly for purported medical reasons, or otherwise object on religious or philosophical grounds. Courts in the United States, including the Supreme Court, have consistently upheld states’ rights to compel mandatory vaccination for schoolchildren to ensure the public health and prevent diseases like measles from plaguing the population. Although all states have mandatory vaccination requirements, most states provide for religious and some, philosophical, exemptions that allow parents to send their children to school vaccine-free. This Note argues that states should strengthen their vaccination requirements by limiting religious exemptions to only “genuine and sincere” religious beliefs that oppose vaccination, and do away with philosophical exemptions entirely. State legislatures can do this by either independently redrafting their vaccination statutes using New York’s statute as a model, or, alternatively, adopting a proposed uniform vaccination law, which would also use the New York framework.

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Vindicating the Vaccine: Injecting Strength into Mandatory School Vaccination Requirements to Safeguard the Public Health

Vindicating the Vaccine: Injecting Strength into Mandator y School Vaccination Requirements to Safeguard the Public Health James Lobo 0 1 2 0 Boston College Law School 1 Thi s Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact 2 James Lobo, Vindicating the Vaccine: Injecting Strength into Mandatory School Vaccination Requirements to Safeguard the Public Health , 57 B.C.L. Rev. 261, 2016 Part of the Education Law Commons, Health Law and Policy Commons, and the State and Local Government Law Commons Recommended Citation - Article 7 Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr 1 See Rong-Gong Lin II, Measles Outbreak Spreading Beyond Disneyland Visitors, L.A. TIMES (Jan. 17, 2015), http://www.latimes.com/local/orangecounty/la-me-0118-measles-outbreak-20150118story.html#page=1 [http://perma.cc/F52E-5PG5]. The identity of patient zero is yet unknown, but the first patient to be referred to the California Department of Public Health was an 11-year-old unvaccinated child who had visited one of the Disney theme parks during the exposure period. See Jennifer Zipprich et al., Measles Outbreak—California, December 2014-February 2015, CTRS FOR DISEASE CONTROL & PREVENTION MORBIDITY AND MORTALITY WKLY. R. (Feb. 20, 2015), http://www.cdc. gov/mmwr/preview/mmwrhtml/mm6406a5.htm?s_cid=mm6406a5_w [http://perma.cc/86FM-6NDR]. Arizona.2 In response, health officials in Orange County, California—a region with high rates of parents who opt out of vaccinating their children—ordered about two dozen high school students without proof of immunization to stay home after learning that an infected student had come to school following the school’s winter break.3 Vigorous vaccination practices largely eradicated measles in the western hemisphere in the 1990s, but many of those infected via this Disneyland outbreak were unvaccinated.4 A study by researchers at MIT, Boston Children’s Hospital, and Harvard Medical School indicated that substandard vaccination rates likely caused the rapid spread of the outbreak.5 It is not surprising that the disease found a foothold in the parts of California where vaccination levels for schoolchildren are markedly low, a reflection of an “anti-vaccination” movement that has developed in isolated but notable pockets across the nation.6 The “anti-vaccinationists” object to childhood inoculation on various grounds, but most commonly for religious or philosophical reasons, or because of beliefs that vaccines are unsafe.7 But as the movement gains traction and more and more parents refuse to vaccinate their children, the risks of a public health crisis, as evidenced by the Disneyland measles outbreak, grow increasingly real.8 2 See Rong-Gong Lin II et al., As Disneyland Measles Outbreak Spreads, O.C. Bars Students Lacking Proof of Shots, L.A. TIMES (Jan. 20, 2015), http://www.latimes.com/local/orangecounty/lame-measles-huntington-beach-20150121-story.html#page=1 [http://perma.cc/CJ8R-3C6W]; see also Measles Cases and Outbreaks, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/ measles/cases-outbreaks.html [http://perma.cc/YQ5F-HLLU] (showing a map of the states and the number of people affected by the Disneyland outbreak). 3 See Lin et al., supra note 2. 4 See Lin, supra note 1; Zipprich et al., supra note 1 (providing statistics on vaccination rates of patients involved in the Disneyland outbreak). Measles presents as a rash but can spread surreptitiously for up to four days before any symptoms appear. See Bill Briggs, Measles Outbreak Spreads in California, Other States, NBC NEWS (Jan. 19, 2015), http://www.nbcnews.com/health/health-news/measlesoutbreak-spreads-california-other-states-n289091 [http://perma.cc/3T8U-KLTM]. 5 See Maimuna Majumder et al., Research Letter, Substandard Vaccination Compliance and the 2015 Measles Outbreak, 169 J. AM. MED. ASS’N PEDIATRICS 494, 494 (2015) (showing that immunization rates that fell far below the required threshold contributed to the outbreak’s spread). 6 See Lin, supra note 1; see also Press Release, Kaiser Permanente, Study Identifies Geographic Clusters of Underimmunization in Northern California (Jan. 18, 2015), http://share.kaiserpermanente. org/article/study-identifies-geographic-clusters-of-underimmunization-in-northern-california/ [http:// perma.cc/7WA8-RJML] (using electronic medical records and spatial analysis software to document hot spots of underimmunization and vaccine refusal among the company’s members). 7 See Steve P. Calandrillo, Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?, 37 U. MICH. J.L. REFORM 353, 388 (2004) (documenting the common religious and philosophical objections to vaccinations and highlighting (...truncated)


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James Lobo. Vindicating the Vaccine: Injecting Strength into Mandatory School Vaccination Requirements to Safeguard the Public Health, Boston College Law Review, 2016, Volume 57, Issue 1,