If there's a silver lining in the ongoing outbreak of
Two public health experts have just weighed in with a timely look at the legislative landscape and lawmakers' options. Y. Tony Yang of
The tightening-up process has already begun they find, albeit slowly, sometimes by increasing the "rigor of the documentation and filing process" required before parents can opt out of vaccinations for their children.
"This is the loudest discussion of the issues I've heard in quite some time," Silverman told me. "A couple of years ago, it was really a theoretical discussion in the United States. Now we're seeing the consequences of forgetting how easily and quickly severe issues can arise when measles is present."
There's no question that state legislatures have the right to mandate immunizations. Two states, Mississippi and West Virginia, don't even recognize religious grounds for exemptions. All 50 states allow medical exemptions, such as in cases of suppressed immune systems or the likelihood of life-threatening side effects. But among the 48 states that recognize religious exemptions, 20 also provide for "philosophical or moral" exemptions.
Studies have shown that states allowing such personal belief exemptions have higher rates of vaccine-preventable diseases than the others. The toll can be especially severe among the exempted children. According to a 2000 study of Colorado schoolchildren, exempted children were 22 times more likely to contract measles and six times more likely to acquire whooping cough than their vaccinated schoolmates; for kids in day care and primary school, who are younger and more susceptible, their risks were 62 times higher for measles and 16 times higher for whooping cough. Since anti-vaccine sentiment occurs in geographic clusters, those communities experienced more outbreaks too.
The Supreme Court upheld mandatory vaccination laws in 1905. The court reinforced its opinion in the 1944 case of Prince vs. Massachusetts, when it ruled that the need to protect the health and safety of schoolchildren trumps parental rights and religious beliefs guaranteed by the First Amendment. "The right to practice religion freely does not include the liberty to expose the community or the child to communicable disease," the court ruled. "Parents may be free to become martyrs themselves. But it does not follow that they are free...to make martyrs of their children."
Says Silverman, "If the pendulum is is swinging toward greater concern about infectious disease outbreaks, then from a legal perspective, policymakers are well within their powers to make [vaccination mandates] more restrictive."
Over the years, legislators trying to strike a political balance between immunization mandates and individual rights have been swinging the pendulum the other way--and once it starts swinging toward liberalizing religious or philosophical exemptions, it's hard to bring it to a halt.
Many states don't provide the authority or the resources for health or school officials to challenge claims of religious belief. Silverman, in a 2003 paper on vaccine exemptions, reported that numerous websites offered objecting parents "relevant Biblical quotations" to dress up their applications, if needed.
In New York, courts eventually approved an exemption claimed by a parent who had joined a church based on "chiropractic ethics," which opposed immunization. The church didn't hold regular meetings and the parent was barely familiar with its tenets, but the court held that her belief was both religious and sincere.
Few school district or health officials were eager to spend the time and money to question applicants' beliefs after that. But the absence of such reviews, Silverman observed, leaves states "unprotected against fraudulent claims of qualification."
In many states, vaccination mandates are peppered with loopholes. California, Yang and Silverman say, is among the most lenient despite its requirement that applicants receive information about vaccine safety and effectiveness from any of five categories of medical professional. Yang says the factors making California's rules lenient include: Children can attend school without documentation of full vaccination; exemption applications don't have to be notarized; applications don't have to be reviewed by a health or school official; and parents can expect that the sincerity and content of their religious beliefs won't be examined.
Among the steps California and other overly indulgent states can take is to shore up their "informed consent" requirement, so that parents not only have to certify that they "received" information about the benefits and risks of vaccination, but that they receive a genuine education in the issues before being granted a waiver. Yang and Silverman acknowledge that eliminating all religious and personal-belief exemptions may be "politically unfeasible," but granting them should require more than a rubber stamp.
The educational process may not do much to persuade hard-core vaccination skeptics, but it may show parents who are merely on the fence about vaccinating their children how harmful non-immunization can be for their families and their communities.
News reports of the spread of the Disneyland measles outbreak could push that along. Public health officials can help by reminding parents of the real-world consequences of vaccination refusal, short of the danger to their kids' health: If a measles case shows up at your unvaccinated children's school, your children may have to stay home for the three-week incubation period because they're especially vulnerable.
"That is just now starting to happen now," Silverman says. "That could be a significant consideration that the public should be taking into account when they decide not to vaccinate." Lost school and, perhaps, lost work time. "All of a sudden, you have to make all these arrangements because your kid has to stay home from school--it's a major hassle." Combined with the real perils to their children's health from remaining unvaccinated, the message may finally penetrate that failing to vaccinate one's children is folly.