Reduce exemptions to vaccine mandates
In 2002, the Centers for Disease Control declared measles eliminated in North America. In 2019, measles came back, with over 1,200 cases — the highest since 1992.
What to do? After a measles outbreak at Disneyland caused by low vaccination levels, California prohibited non-medical vaccine exemptions. That strategy has worked. Legislators in multiple states followed it — New York and Maine removed their non-medical exemptions, Washington state removed the personal belief exemption in its law.
Connecticut legislators are now considering whether to pass a bill that removes the religious exemption to their school mandate. They should. It makes moral, public health and common sense. Stronger school mandates mean fewer people get exemptions from vaccines, and that means fewer outbreaks, fewer hospitalizations, fewer emergency room visits and fewer deaths.
Some critics of reducing exemptions vehemently insist that tougher vaccine mandates are neither ethical nor legal. Ethically, they are wrong. And the long history of vaccine-mandate jurisprudence shows that American law backs protecting children and the public health over poor parental choices.
Opponents of restricting exemptions claim that school mandates violate parental rights. But children have rights too, as do you and I, and we are all left vulnerable by exemption-fueled outbreaks. There is no absolute, inviolate right to leave children unprotected from serious disease when risks of vaccines are absolutely small and much smaller than the risks of not vaccinating. Newborns, children and adults who, due to weak immune systems often caused by diseases, can’t vaccinate have rights, too. Morally, children’s rights to be free from easily preventable disease ought to come first.
As for the law, for over 100 years, state and federal courts reviewing state immunization mandates have found them constitutional. In 1905, the Supreme Court in Jacobson v. Massachusetts upheld a smallpox vaccine mandate and made it clear that individual rights can be limited to protect the public health.
Another fundamental legal principle supporting school mandates is that they involve children. Children do not have the same autonomy to make health-care decisions as adults, and states have more leeway to protect them than to try to protect adults from themselves.
Based on these principles, courts consistently support school mandates. Rejecting legal challenges to California and New York’s new and stringent immunization law, courts repeated these points. A California appellate court described immunization mandates as “the gold standard for preventing the spread of contagious diseases.”
Nor do courts accept claims that vaccine mandates violate religious freedom. Historically, generally applicable, neutral laws have been applied even to those with religious objections. There is no constitutional right to violate laws about bigamy, child sacrifice or taxes because of religious objections. In the words of the Supreme Court, the “right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” Courts do not require states to offer a religious exemption from school mandates.
Measles should not exist in the U.S. It is only poor ethical and legal thinking that has allowed the disease to reappear. And with other diseases like coronavirus and swine flu lurking out there, Connecticut should enact school mandates that put children’s’ health and the public’s health first. Arthur Caplan is the director of the Division of Medical Ethics at New York University School of Medicine. He lives in Ridgefield. Dorit Rubinstein Reiss is a professor of law at the University of California — Hastings College of Law.