Feb 2, 2015


FEBRUARY 2, 2015

In case you haven’t heard, the measles are back. In a big way. Cases of measles have been on the increase in the last few years, and this month an outbreak now reaching at least 94 patients has been tied to an exposure at Disneyland.

It appears that the source of this latest infection was likely either a foreign tourist or an American who returned carrying the disease from abroad, but the outbreak has brought renewed attention to the anti-vaccination movement (like this RNS commentary arguing that “Parents who do not vaccinate their children should go to jail”). What hasn’t been highlighted is the fact that the increased instances of measles and other previously-eradicated diseases in this country over the last decade are actually a cautionary tale about religious exemptions.

All states have mandatory vaccine laws for public school students, but almost all states (48 to be precise) allow exemptions for those who have a religious objection to vaccines. And 19 states allow exemptions for those with philosophical/conscientious objections that are not explicitly religious in nature. Although I haven’t delved into the legislative history of each of these laws, I think it’s a fair bet that when they were passed the religious exemptions were intended to protect a very small percentage of the population with religious objections to vaccination, like Christian Scientists or some parts of the Amish community.

It’s unlikely that the exemptions were intended to be used by the growing number of well-educated and well-off parents whose version of a “natural”/”organic” lifestyle has metastasized into vaccine science denial. There is a debate about whether the purpose of religious exemptions is to give religion special privileges or simply to protect religious people from discrimination, especially people of minority religions who may be disproportionately impacted by general laws that are made by people of a majority religion. But regardless of the reason, most religious exemption laws are, as the name suggests, only for religious believers. (In the military conscientious objector context, the set of protected beliefs was expanded to include a philosophical opposition to war that was of a similar scope and gravity to a religious objection.)

But a belief that vaccines cause autism (which is contrary to all scientific evidence) is not the kind of life philosophy that exemption laws are generally designed to protect. And in fact, there have been recent calls to remove the “personal belief” exemption from California’s vaccine law on the grounds that it is being abused and is destroying the herd immunity that is required to protect people who actually cannot be safely vaccinated, like young babies, or immuno-compromised individuals. (“Herd immunity” refers to the idea that a population can support a small percentage of unvaccinated individuals as long as the proportion of vaccinated individuals remains above a certain threshold – in that context herd immunity will protect most of the unvaccinated individuals because outbreaks will be thwarted by the high level of vaccinated individuals).

The irony is that if there were no such exemptions in a vaccine law, it is unlikely that a plaintiff would be able to win a Religious Freedom Restoration Act claim (under a state RFRA or similar statute). A plaintiff with a “personal belief” claim would certainly not be able to obtain a judicial exemption, since RFRAs protect only religious belief.

But even a plaintiff with a religious belief against vaccination would have an uphill battle. The government’s compelling interest in public health and the eradication of fatal diseases, particularly in the population of young children, seems very hard to overcome – especially in a situation where herd immunity is required for successful eradication of the disease.

Further, it’s hard to imagine a case in which you could have stronger third-party interests than this one. For those children who cannot be safely vaccinated, the presence of an unvaccinated child who might transmit the disease is literally a question of life or death.

And the fact that there might be more than one child who cannot be vaccinated in a given school isn’t fatal – that’s the narrow tailoring inquiry, which asks whether the government has designed the law being challenged as narrowly as it can in order to achieve the goal that law is after without unnecessary infringement on people’s rights. The law requiring vaccination of all children who can be safely vaccinated in order to protect both those children and the few children who cannot be safely vaccinated is as narrowly tailored as it can get.

All in all, these vaccination exemptions should remind us of the dangers of including overly broad exemptions in generally applicable laws, especially those protecting public health and access to civil rights like education. Once the exemptions are in, they are hard to get out and very difficult to control.


No comments: