Why does Mississippi lead the nation in child immunization?

By Ross D. Silverman

In the midst of the national discussion of measles and the state laws that foster or inhibit its spread, a curious fact has emerged, as noted recently by my JAMA co-author Tony Yang:

Mississippi, dead last in the nation’s overall health rankings in 2012, 2013, and 2014, leads the nation in childhood vaccination rates, and hasn’t had a measles outbreak in more than two decades.

How did this happen?

Mississippi’s state childhood immunization law does not offer exemptions for religious or personal beliefs, and its medical exemptions may only be issued by pediatricians, family physicians, or internists.

Why doesn’t Mississippi have a religious or a personal belief exemption?

First, states are not obligated to offer one, as the U.S. Supreme Court discussed over 70 years ago in Prince v. Massachusetts:

But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty.  And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s wellbeing, the state, as parens patriae, may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. 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. The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare, and that this includes, to some extent, matters of conscience and religious conviction.

Second, Mississippi used to have a religious exemption, but in 1979, the Mississippi Supreme Court struck it down as unconstitutional.

In Brown v. Stone, the court heard the case of Chad Brown, a six year old about to enter the first grade. His family were members of the Church of Christ, and his father was a chiropractor and strong opponent of vaccination. The family sought a religious exemption from the state, and were denied, as the state only allowed religious exemptions if the request came from a “recognized” denomination whose teachings require reliance on prayer or spiritual means of healing. They challenged the law, and the court agreed that the law was unconstitutional – to restrict a religious exemption to a list of “recognized” religions was discriminatory. But instead of agreeing with the Browns that a broader religious exemption was what was needed, the Court said the health of children, and the public’s health, were too important to allow people to opt out of based on personal beliefs. According to the court:

The fundamental and paramount purpose of the Mississippi Legislature in the enactment of Senate Bill No. 2650, Mississippi Code Annotated section 41-23-37 was to afford protection for school children against crippling and deadly diseases by immunization. That this can be done effectively and safely has been incontrovertibly demonstrated over a period of a good many years and is a matter of common knowledge of which this Court takes judicial notice.

If the religious exemption from immunization is to be granted only to members of certain recognized sects or denominations whose doctrines forbid it, and, as contended by appellants, to individuals whose private or personal religious beliefs will not allow them to permit immunization of their children, to this extent the highly desirable and paramount public purpose of the Act, that is, the protection of school children generally comprising the school community, is defeated.

Is it mandated by the First Amendment to the United States Constitution that innocent children, too young to decide for themselves, are to be denied the protection against crippling and death that immunization provides because of a religious belief adhered to by a parent or parents?

….

After a thoughtful consideration of the facts and the arguments advanced by appellants, we have concluded that the statute in question, requiring immunization against certain crippling and deadly diseases particularly dangerous to children before they may be admitted to school, serves an overriding and compelling public interest, and that such interest extends to the exclusion of a child until such immunization has been effected, not only as a protection of that child but as a protection of the large number of other children comprising the school community and with whom he will be daily in close contact in the school room. The relationship of parent and child is one in which the law concerns itself more with parental duties than with parental rights. The relationship carries with it a duty resting upon the parent to provide the child with food, clothing and shelter and to protect the child from preventable exposure to danger, disease and immorality. It must not be forgotten that a child is indeed himself an individual, although under certain disabilities until majority, with rights in his own person which must be respected and may be enforced. Where its safety, morals and health are involved, it becomes a legitimate concern of the state.

The protection of the great body of school children attending the public schools in Mississippi against the horrors of crippling and death resulting from poliomyelitis or smallpox or from one of the other diseases against which means of immunization are known and have long been practiced successfully, demand that children who have not been immunized should be excluded from the school community until immunization has been accomplished. That is the obvious overriding and compelling public purpose of Senate Bill No. 2650. To the extent that it may conflict with the religious beliefs of a parent, however sincerely entertained, the interests of the school children must prevail. Senate Bill No. 2650 is a reasonable and constitutional exercise of the police power of the state insofar as it provides for the immunization of children before they are to be permitted to enter school.

In its decision to strike down the religious exemption altogether, the Mississippi Supreme Court also talked about how exemptions can threaten herd immunity and put those children who are adhering to the law at greater risk:

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.

Yesterday, California legislators proposed a bill to eliminate both its personal belief and religious exemptions, and a legislator in Washington state also proposed eliminating their state’s personal belief exemption. Whether these bills to eliminate exemptions are successful is a question of politics; under the law, it’s clear it can be done.

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Ross D. Silverman

Professor of Health Policy and Management, Indiana University Richard M. Fairbanks School of Public Health and Professor of Law, Indiana University Robert H. McKinney School of Law in Indianapolis, IN.

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