The rights of the unvaccinated child: The legal view
In light of what’s starting to look like a surge of measles cases spread by unvaccinated carriers, Hastings Law professor Dorit Rubinstein Reiss offers some welcome insights into the legal rights of unvaccinated children.
The first two installments of Reiss’ five-part series are up at the website shotofprevention.com, with the rest due over the next couple of weeks. Reiss provides a tour of the legal landscape via case law and legal principles, but her core finding is that parents are responsible for weighing the pros and cons of vaccination for their children, and the pros far outweigh the cons.
She writes: “By rejecting the abundant data that proves that the risk of not vaccinating is greater than vaccinating, and by purposely leaving a child at the mercy of vaccine-preventable diseases, parents can legitimately be seen as violating a child’s right to health and life.”
Whether parents have immersed themselves in the anti-vaccination literature available at the far fringes of science, and sincerely believe it, doesn’t matter.
“Many parents that choose not to vaccinate...may be swayed by anti-vaccine rhetoric including stories of harm from a vaccine, even when the evidence disproves those stories,” Reiss observes. “Some fall prey to the notion that vaccines contain harmful toxins. Some have a general distrust of the medical establishment. Fortunately, there is extensive evidence debunking each of the claims.”
She adds that it’s not unusual for society to weigh benefits of a safety mandate against the risks, and come out on the side of the mandate; seat belts are an obvious example.
In upcoming posts, Reiss will be examining when it’s appropriate to require parents to vaccinate a child, and the role of school immunization requirements in keeping children healthy. As she observes, courts have difficulty grappling with the idea of ordering parents to vaccinate. In the 1992 New York case of “Christine M.,” the court found the parents guilty of neglect for refusing to immunize their 2-year-old during a measles epidemic, but declined to order the vaccination when it ruled two years later because by then the epidemic had passed.
The first glimmers of a possible new epidemic are just emerging now, making parents’ responsibility to ignore crackpot theories of vaccination risks and protect their children from disease even greater.
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