Rights of the Unvaccinated Child: The Role of School Immunization Requirements

This is the fifth post in a five-part series written by guest blogger Dorit Rubinstein Reiss.

Dr. Reiss is a Professor of Law at the University of California Hastings College of  the Law in San Francisco, CA, who often examines the social policies of vaccination in various articles, blogs and law journals.  In this series, she will elaborate on the legal mechanisms that are available to protect children against the risk of non-vaccination.  A detailed explanation of each of the following posts appears at the conclusion of this article.

Much has been written about school immunization requirements and exemptions, usually from the point of view of protecting public health and preventing outbreaks, or in regard to parental rights. This blog itself has carried several posts on the topic (here, here and here).  An important justification for immunization requirements is that in a school environment children are in close contact and some preventable diseases can be transmitted easily. Schools are therefore vulnerable to outbreaks, and those outbreaks put all children in danger. Because an unvaccinated child in school puts others at risk, it is appropriate to intervene and limit parental freedom.

However, that is not the focus of this discussion. 

The following entry will address the role school immunization requirements can play in protecting a child against her own parents’ decision not to vaccinate.

The starting point is that school immunization requirements are both constitutional and effective. The Supreme Court ruled that they were constitutional as early as 1922, in Zucht v. King, 260 U.S. 174 (1922).

There are several indications that these requirements are effective. Mississippi, which only offers medical exemptions from school immunization, has very high rates of immunization. In Connecticut, a new requirement that children in child care receive the influenza vaccine led to rates’ increasing from 67.8% to 84.1% (and a corresponding decrease in flu-related hospitalization for children). Allowing parents to opt out can lead to less protection: studies have shown that easy-to-obtain exemptions from school immunization requirements lead to higher rates of exemptions[1] and that rates of nonmedical exemptions are higher when a state offers a personal choice exemption in addition to a religious one.[2]

At the same time, school immunization requirements can also lead to resistance and opposition. Nobody likes to be coerced, and some people who would not otherwise oppose immunization may resent and resist a mandate.

Vaccine advocates often say that parents have a choice: they can homeschool or send their child to a private school. But the ability to do that depends on the state’s willingness; quite a few states apply school immunization requirements to private schools, and several, including North Carolina and Virginia, further apply them to homeschooled children. So, parents may not have a choice in the strict sense – and if the goal is maximum protection of the child, that may be appropriate.[3] Even in states where the option is available, not every family can afford private school or is capable of homeschooling, and for families that can homeschool, there remains an element of coercion in telling parents that they must choose between vaccinating and restricting the ability of at least one member to work full-time.

What Does the Law Say?

Today, all fifty states and the District of Columbia have school immunization requirements. Several sites provide informative links to these laws, including the CDC and the Immunization Action Coalition.

States decide which vaccines out of the CDC’s recommended schedule are required in order to attend school, and there is substantial variation. States also differ on whether these requirements apply to preschools and private schools. As mentioned above, while most states do not apply the requirements to homeschooled children, North Carolina and Virginia do.

States also vary in the types of exemptions they offer. All states and the District of Columbia offer a medical exemption. States are not required to provide any nonmedical exemptions (see, most recently, Workman v. Mingo County Sch., 667 F. Supp. 2d 679 (S.D. W. Va. 2009), aff’d sub nom. Workman v. Mingo County Bd. of Educ., No. 09-2352, 419 F. App’x 348 (4th Cir. Mar. 22, 2011) (per curiam)), and two – West Virginia and Mississippi – do not. Other states offer either a religious or a philosophical exemption or both.[4]

States have considerable leeway in terms of the procedural requirements that accompany exemptions, and those also vary. Some states require nothing more than a parental signature on a form. Others have exemptions that are relatively difficult to obtain, such as New York’s medical and religious exemptions: the latter are open to scrutiny regarding both their sincerity and religious nature.

There are constitutional limits on the content of religious exemptions. First, although the Supreme Court has not spoken to this point, there is an apparent consensus that states cannot limit religious exemptions to members of organized religions (e.g., Dalli v. Board of Educ., 267 N.E.2d 219 (Mass. 1971)). Second, in states where the statute does not require a show of sincerity to grant such an exemption, the state is required to accept the word of the person requesting an exemption on the matter (LePage v. Wyoming Dep’t of Health, 18 P.3d 1177, 1180 (Wyo. 2001)). Third, even in states that require a show of sincerity, a state cannot refuse an exemption on the ground that the applicant’s religion does not oppose vaccination: an applicant may have her own interpretation of the fundamental tenets, and as long as his or her religious opposition to vaccines is sincere, the state may not inquire further (Berg v. Glen Cove City Sch. Dist., 853 F. Supp. 651, 655 (E.D.N.Y. 1994)).

I analyze the legal framework for religious exemptions in detail in a forthcoming paper.[5] Good sources on exemptions are provided by Alicia Novak[6] and Steve Calandrillo.[7]

How Should the Law Change?

Exemptions:  What is Appropriate?

The focus here is on nonmedical exemptions. No one I know of claims that children with valid medical contraindications should be vaccinated, although there may be debate on which requirements should precede the medical exemption and how to prevent its abuse. We are focusing on a child’s right to health, and for a small number of children, protecting that right means not vaccinating them. However, those children rely on the herd effect to protect them against disease and, depending on the medical reason, may be particularly vulnerable to vaccine-preventable diseases. Nonmedical exemptions, especially if widely used, put those children at risk.

As mentioned above, state legislatures do not have to provide any nonmedical exemptions, although most do. States that do may be concerned that not having at least a religious exemption would be unconstitutional (which is not the case, as I explain in more detail here) or have a particular desire to accommodate religious minorities and respect parental rights (which figure centrally in the dialogue -. see, for example, the debate in Colorado and Mississippi). The arguments for restricting exemptions focus on preventing outbreaks, with the risk of outbreaks highlighted.

Important as that is, the discussion should also include the danger exemptions pose for the child for whom an exemption is requested. Whether the parents’ reasons are genuinely religious, or misplaced fears stemming from anti-vaccine misinformation,  the objective evidence is that unvaccinated children are at higher risk of disease.  Since the risks of vaccinating are an order of magnitude smaller than the risks of not vaccinating, allowing an exemption leaves the child at higher risk and the interest of the child deserves protection.

Should courts find exemptions unconstitutional?

The argument that exemptions – especially religious ones – should be unconstitutional has been made from several directions, including CHILD (a nonprofit organization devoted to protecting children’s health; see, e.g., Brief for Amici Curiae Children’s Healthcare Is a Legal Duty et al., Workman v. Mingo County Sch. Bd. (No. 2:09-CV-00325)), Dr. Paul Offit, and Alicia Novak, cited above. The legal source used to support CHILD’s position is Brown v. Stone, 378 So. 2d 218, 223 (Miss. 1979). While Brown itself is not a well-written decision, the argument drawn from it is that the exempt children’s right to equal protection is violated when they are denied the protection that vaccines offer against dangerous diseases. So far, no court besides the Mississippi Supreme Court has accepted this argument. But it is possible to use Brown to argue that exemptions are unconstitutional, although this is certainly not the prevailing view. Other options may include interpreting the right to life in the Fourteenth Amendment to include a right to health of the child, applying procedural due process to require the state – before exempting parents from a requirement that protects that right – to jump through some procedural hoops, and finding exemptions that require nothing except a signature on a form unconstitutional. This idea has not been accepted anywhere at this point and requires further thought.

Abolish the religious exemption

Religious exemptions, as I have discussed elsewhere, are vulnerable to abuse. Courts are justifiably reluctant to police them, since they do not want to become guardians of people’s conscience, and it is unclear whether the Establishment Clause allows them to. Novak, in fact, argues that most religious exemptions violate the Lemon test, as discussed in part 4 of this series, since they lead to excessive entanglement of the state with religion. This is true of all exemptions aside from those that require nothing more than a signature – and those are the most vulnerable to abuse.

Should states offer a personal choice exemption?

Unvaccinated children are at higher risk of vaccine-preventable diseases. The temptation is to say that the best protection for children is not to provide any nonmedical exemption. In that case, aside from the small minority of children with specific contraindications, parents would have to vaccinate their children if they wish to send them to school. This is the current policy in both  Mississippi and West Virginia, which do not allow  nonmedical exemptions.

I have some concerns about this approach, however. There are two audiences that may be affected by the lack of exemptions. The first are parents on the fence. The concern here is that parents may react negatively to the mandate and become more hostile and less trustful because of it.   Will a requirement generate resistance? It may.

The other set of parents is the small minority of committed anti-vaccinators who sincerely believe vaccines are harmful to their children. In a situation where  an exemption is not an option,  what will they do? Ideally, they would have to comply, however they would not be happy about it.   Alternatively, they may decide that the only way to avoid harming their children is to falsify records. With exemptions, unvaccinated children are known, and schools typically exclude them if there is an outbreak – something that state laws provide for. This would not be possible if unvaccinated students are not accurately identified.    Alternatively, parents may vaccinate their children and then use one of the untested, unsupported “detoxification” protocols suggested by anti-vaccine extremists.   Would the child be better off vaccinated and exposed to these methods, or unvaccinated? Finally, for parents who decide to homeschool, their child will be kept out of public school and will be denied the potential benefits other children in the state receive. That would not necessarily be in the child’s best interest.  On the other hand, providing an exemption because of this extreme fringe is also problematic. To some extent, it would reward irrationality and free riding: the minority that does not vaccinate gets to enjoy herd protection without taking the risks – very small, but real – of vaccinating.

Nonetheless, because of these considerations, along with the desire to allow freedom of choice and to avoid creating resistance, I believe that leaving a way out is appropriate.  I think states should have a personal choice exemption, however, it should not be easy to obtain.  By requiring an educational component to exemptions we can address the concerns of the hesitant, delaying or selective vaccinator, while also avoiding problems with those completely opposed to vaccinating, and we can do so while documenting which children are unprotected from which diseases so that we can try to protect them in the event of an outbreak.

Exemptions: Procedures

In recent years, several states have considered – or passed – statutes tightening exemption procedures. Washington, Oregon, and California have each passed educational requirements and Colorado is currently considering it.  The idea, as far as I can tell, is drawn from a paper by public health scholar Ross Silverman, who termed it informed refusal –

“an affirmative duty on the part of the guardian of the child seeking exemption to hold an exemption-specific conversation with a health care provider, and then to present evidence of such a conversation to exemption-granting authorities.”[8]

Such a requirement has the advantage of making exemptions a more deliberate action than just a parental signature on a waiver.   It also leads to a more equal burden: if vaccinating parents have to visit a healthcare provider to have their child vaccinated, why shouldn’t non-vaccinating parents have to do something similar to get exempt from the requirement?  The requirement may also eliminate exemptions that are filed  simply out of convenience, by making exemptions harder (and less convenient) to get. Another key advantage is that this deliberative process may provide a chance for healthcare professionals to respond to the questions and concerns that some vaccine hesitant parents may have as a result of encountering antivaccine misinformation on the internet.

In states that have already adopted these types of procedural requirements, we can see that they have the advantage of preserving choice, limiting exemptions of convenience and ensuring a more deliberative process.  The number of exemptions in each state has dropped as a result of the new statutes, and Colorado may even consider the exemptions be filed on an annual basis – requiring parents to reapply each year.

Scope: Homeschooled Children

Both Virginia and North Carolina apply the same immunization requirements to homeschooling but also allow exemptions to their public school policies.  I would say that it’s desirable for other states to apply the same requirements to homeschooling and private schools as long as there are strong exemption policies in place.   If a state prefers to only offer medical exemptions, they should leave homeschooled children out.  Absent such a mechanism, these parents may be pushed to lying or acting in other ways to protect their children against what they consider a threat.

As outbreaks increase, states may reconsider their exemptions policies, tightening them more. They have quite a bit of leeway to do so. Besides protecting the public health, tightening exemption laws can promote children’s rights to health by encouraging more parents to vaccinate and protect their child against disease.