Non-Medical Exemptions: Weighing Public Health and Individual Rights

By Y. Tony Yang, ScD, LLM, MPH

More and more frequently, the media are reporting two potentially related and troubling developments: an alarming increase in outbreaks of deadly infectious vaccine-targeted diseases and the growing refusal by parents to allow their children to be vaccinated. (See this recent U.S. News & World Report article on cases in New York). Public health officials may therefore fairly ask whether their state vaccine exemption laws are unnecessarily and unintentionally sowing the seeds for a public health crisis and, if so, how their laws could be changed soon to head off avoidable epidemics.

Public health laws seek to balance the wellbeing and safety of the entire population against individual rights of self-determination, informed consent and the right to refuse medical treatments that carry the risk of injury and death. Laws mandating vaccination demand that each of us take risks to protect the community at large. Public health officials reason that vaccination of a sufficient proportion of the population creates “herd immunity” a collective benefit derived from vaccination of the majority of the population that imparts protection to those who remain unvaccinated by impeding disease contagion.

Whether motivated by sound and well-reasoned calculation or misplaced conviction, some parents choose to shield their children from the risks associated with vaccination, yet they benefit from the protection against deadly disease that widespread vaccination confers to the community at large. If sufficient numbers of children are not vaccinated, however, both the unvaccinated children and the rest of the community become vulnerable to disease. It is at this juncture that states have the authority and a compelling interest in the health and welfare of its citizens. But what course of action is best?

Without a clear understanding of the relationship between the use of non-medical exemptions (NMEs), vaccine uptake and health outcomes, policymakers are in a difficult position. It appears that concerns about overuse of NMEs and communicable disease outbreaks have stimulated some states to restructure state NME statutes and make access to NMEs more restrictive. Below are examples of strategies two states have used to try to decrease what decision-makers believe to be inappropriate NME use.

First, in 2002 Arkansas eliminated a provision confining religious exemptions to those belonging to a specific “recognized” religion after that limitation was challenged. A new statute that went into effect in 2004 requires citizens to provide notarized requests, take a class, and sign a refusal-to-vaccinate form.

Second, New York faced the same challenge and eliminated the “recognized” religion requirement in 1989. In contrast to Arkansas’s overhaul of its exemption process, New York school administrators were tasked with examining the sincerity of the religious beliefs for some seeking an exemption. Not surprisingly, this proved controversial. One such examination was recorded and made available to the public on the Internet. The public uproar ultimately resulted in a New York Assemblywoman introducing a personal-belief-exemption bill because she thought that parents should not have “the burden of proving a religious or medical reason to refuse vaccines.”

These examples demonstrate how two states dealt in different ways with the same issue. Neither state knew whether changes in the statute or administrative regulations were likely to affect decisions to use a recommended vaccine or rates of vaccine-targeted diseases. And whether changes in the restrictiveness of these statutes affected those rates is unknown. Clearly, policymakers need such information in order to structure state vaccine exemption laws in ways that maximize health without unnecessarily restricting personal healthcare decision-making.

Appropriately reflecting the examples above, Professor Ross Silverman argues in an article published in the Annals of Health Law that, “the goal [of vaccine exemption statutes] should not be to eliminate the ability of those seeking exemption to receive relief under the law, since such an approach would exacerbate feelings of animosity and skepticism toward vaccination and the public health system in general.” Rather, the goal of state public health policymakers should be to create efficient and effective health care systems that are responsive to the needs of all its citizens.

Dr. Yang is a grantee of the Robert Wood Johnson Foundation’s Public Health Law Research program. A manuscript by Dr. Yang and colleagues detailing the effect of non-medical exemption law and vaccine uptake on vaccine-targeted disease rates has been accepted for publication at the American Journal of Public Health.

Temple University Center for Public Health Law Research

Based at the Temple University Beasley School of Law, the Center for Public Health Law Research supports the widespread adoption of scientific tools and methods for mapping and evaluating the impact of law on health. It works by developing and teaching public health law research and legal epidemiology methods (including legal mapping and policy surveillance); researching laws and policies that improve health, increase access to care, and create or remove barriers to health (e.g., laws or policies that create or remove inequity); and communicating and disseminating evidence to facilitate innovation.

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