The Great Vaccination Debate Rages On: Is There Any Solution?

By Allison M. Whelan (Guest Blogger)

For many years now, there has been ongoing debate about childhood vaccinations and the recent measles outbreak in Disneyland and its subsequent spread to other states has brought vaccinations and questions about communicable diseases back to the headlines.  Politicians, including potential presidential candidates such as Hilary Clinton, Rand Paul, and Chris Christie, are also wading back into the debate.

Most recently, five babies who attend a suburban Chicago daycare center were diagnosed with the measles. As a result, anyone in contact with these infants who has not received the MMR (measles, mumps, rubella) vaccine must remain home, essentially quarantined, for the next twenty-one days—the incubation period for measles. All five of these infants were under the age of one and therefore did not yet have the chance to receive the vaccination, which is not administered until one year of age.

The Chicago outbreak is a prime example of why public health officials emphasize the reliance on herd immunity to protect those who are not yet, or cannot be, vaccinated for legitimate reasons. Unfortunately, the United States has reached a period where it can no longer place much reliance on herd immunity, particularly as more parents decide not to vaccinate their children against very contagious, yet highly preventable diseases. Illness and death are two of life’s certainties, but why should they be given that they are preventable in this situation?  What are the strongest, most rational arguments in this debate? What policy solutions should states consider?  Several options have been proposed over the years, some more feasible and likely than others.

  1. Ending Broad Vaccination Exemptions. Some states, including California, have broadly-worded laws allowing “personal belief” exemptions for vaccinations that in practice seem to allow anyone, for any reason they can claim as a “personal belief,” to opt out of state vaccine requirements. In light of the recent measles outbreak, California lawmakers are rethinking the State’s policies, with Senators Barbara Boxer and Dianne Feinstein proposing an end to all exemptions other than legitimate medical exemptions.
  1. Prohibiting Unvaccinated Children from Attending School. This solution could be limited to prohibiting unvaccinated children from attending school during an outbreak of a vaccine-preventable disease or complete prohibition of unvaccinated children from attending the school entirely. The more limited policy is already in place at New York City schools and has been upheld by a federal judge. Under this policy and the court ruling, New York City schools are allowed to ban students who are not vaccinated from attending schools when there is an outbreak of a vaccine-preventable disease. The decision came after the policy was challenged by parents claiming religious liberty violations when their children were not allowed in schools during a chicken pox outbreak, for which there is now a vaccine. Schools in California are now taking similar measures. A complete prohibition of unvaccinated students in absence of an outbreak is likely to raise far more issues, implicating parental rights, religious rights, and educational rights, and would almost certainly be challenged in court if and when a school takes this more drastic policy approach.
  1. Tort Law: Allowing Lawsuits against Parents for Failing to Vaccinate their Children. Some have proposed using tort law to impose liability on parents who refuse to vaccinate their children (such as by Arthur Caplan in this blog in May 2013). Journalist Jacoba Urist lays out the (no-longer hypothetical) situation: “Say you take a family trip to Disney Land and your baby gets measles – perhaps suffers severe complications and can no longer hear or is left with brain damage. Would you want to sue the parents who voluntarily decided not to vaccinate their child, thus allowing the disease to pass to your baby?” Urist asks whether such parents, if their decision was based on a “personal belief” rather than an actual medical reason, should be held liable for their unvaccinated children’s infection of others who are too young to receive or cannot receive vaccines for legitimate reasons. One of the major issues for tort liability in these cases is causation. Although there may be some cases where you could prove that the only way your child contracted measles was by exposure from a particular unvaccinated child, in many situations it may not be possible to do so, such as in the Disney Land case where identifying “Patient Zero” may never occur.

This list is certainly not exhaustive and undoubtedly more proposals to address vaccine opposition will arise as the issue continues to be discussed and diseases continue to spread. Although I certainly do not claim to know which, if any, of these options is best, we must at least address this issue by ending the broad-based “personal exemptions” that are allow parents to put their own children, and innocent others, at risk for preventable diseases. Legitimate medical exemptions should certainly be allowed, but in an era when we can easily prevent illness and potential serious disability and death from these communicable diseases, there is no reason not to, particularly when the vast majority of scientific data supports the safety and efficacy of these vaccines.

Michele Goodwin

Michele Bratcher Goodwin is a renowned scholar, advocate, and author who has devoted her career to uplifting the voices, social conditions, and rights of women and children around the globe. A widely cited legal authority in constitutional law, health law, and women’s rights, her writings have been consulted by courts, legislators, government agencies, and civil society organizations. She has advised or given testimony before Congress and state governments as well as the United States’ Uniform Law Commission on privacy, the regulation of the human body, and reproductive health.

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