Tragedy of the Commons in Public Health: Eliminating Religious and Personal Belief Exemptions to Compulsory Vaccinations

Sarah Tipton, KLJ Staff Editor[i]

In January 2015, the United States had more cases of measles than the number typically diagnosed in an entire year.[ii] The outbreak, which began with forty diagnosed people at Disneyland in December, has now spread to at least six other states.[iii] However, this current outbreak is not the largest in United States history.[iv] Only months earlier, 383 people fell ill with measles in Ohio’s Amish Country.[v] For a disease that was declared eliminated in 2000, how and why has measles returned in such an unprecedented fashion?[vi]

Through both traditional and social media, debate over the necessity and safety of vaccinations has recently intensified. News pundits, members of Congress, and stay-at-home moms alike have weighed in on the issue. New Jersey’s Governor, Chris Christie, and Kentucky’s own Senator Rand Paul, fueled the debate with their comments advocating for parents’ rights to choose whether to vaccinate their children.[vii] Though Christie and Paul claim to be pro-vaccination, Paul recited the common contention of the anti-vaccine movement, that vaccines may cause autism.[viii]

In 1998, the British medical journal, The Lancet, published a study alleging a link between the measles-mumps-rubella vaccine and autism.[ix] This study has been widely discredited by the scientific community, and ten of the twelve researchers later retracted their conclusions.[x] Largely because of this misleading study, fear of vaccination still remains in America despite the critical role vaccines have played in preventing disease outbreak.[xi]

Another important benefit of vaccination is herd immunity, which denotes a community’s collective resistance to an infectious disease through the immunity of a majority of its members.[xii] Herd immunity protects susceptible persons, including those who have not received a vaccine due to a prohibiting medical condition.[xiii] For example, children undergoing chemotherapy cancer treatment cannot be vaccinated due to their weakened immune systems; therefore, herd immunity is essential to protect these individuals.

Today, all fifty states have implemented mandatory vaccination laws for schoolchildren from kindergarten through twelfth grade in both public and private schools.[xiv] Nonetheless, large loopholes in mandatory vaccination still remain. All fifty states allow medical exemptions to vaccinations, forty-eight states allow religious exemptions, and seventeen states allow an exemption based on personal beliefs.[xv] Medical exemptions are necessary, as shown by the example of children who may have weakened immune systems. However, personal belief and religious exemptions to vaccines are neither medically nor constitutionally necessary.

Mississippi and West Virginia, two leading states in immunization, have eliminated both religious and philosophical exemptions.[xvi] Supreme Court precedent permits this legislation.[xvii] In Jacobson v. Massachusetts and Zucht v. King, the Court upheld the authority of the states to enforce compulsory vaccination laws as part of the states’ police power to protect public health and safety.[xviii] Though the Supreme Court has not specifically addressed the constitutionality of eliminating personal belief or religious exemptions, lower courts have generally rejected free exercise objections to immunization requirements.[xix]

While philosophical and religious exemptions reflect an attempt to reconcile competing personal and public interests, these exemptions also allow parents to easily circumvent compulsory vaccinations.[xx] Parents may simply check an opt-out box, and in doing so they threaten the health and wellbeing of the nation.[xxi] Because vaccinations are imperative to preventing highly contagious, symptomatic illness, state legislatures should follow the lead of West Virginia and Mississippi and move to eliminate philosophical and religious exemptions.


[i] University of Kentucky College of Law, J.D. Candidate 2016. The opinions expressed in this article are the author’s own and do not reflect the opinions of any other person or entity.

[ii] Jonathon Corum, et al., Facts about the Measles, New York Times (Feb. 6, 2015), http://www.nytimes.com/interactive/2015/02/02/us/measles-facts.html

[iii] Id.

[iv] Alicia Chang, Disneyland Measles Outbreak Isn’t Largest In United States History, ABC News (Feb. 4, 2015), http://abcnews.go.com/Health/wireStory/disneyland-measles-outbreak-largest-recent-memory-28725434

[v] Id.

[vi] Huong McLean, Measels – United States, 2011, Morbidity and Mortality Weekly Report (Apr. 20, 2012), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6115a1.htm

[vii] Tara Haelle, Why the Not-So-Great Vaccine Debate of February 2015 Doesn’t Matter, Politico Magazine (Feb. 8, 2015), http://www.politico.com/magazine/story/2015/02/vaccines-politics-115008.html#.VNuCW76pKSI

[viii] Id.

[ix] Linda E. LeFever, Religious Exemptions from School Immunization: A Sincere Belief or A Legal Loophole?, 110 Penn St. L. Rev. 1047, 1055 (2006).

[x] Id.

[xi] Id. at 1048.

[xii] Matt Lasher, Improving Indiana’s Mandatory Immunization Programs, 7 Ind. Health L. Rev. 117, 124 (2010).

[xiii] Id.

[xiv] Id. at 1052.

[xv] Vaccine Laws, National Vaccine Information Center (2014), http://www.nvic.org/vaccine-laws.aspx

[xvi] Alan Blinder, Mississippi, A Vaccination Leader, Stands by its Strict Rules, New York Times (Feb. 4 2014), http://www.nytimes.com/2015/02/05/us/mississippi-a-leader-on-vaccination-rates-stands-by-strict-rules.html

[xvii] Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 39 (1905).

[xviii] Id.

[xix] See, e.g., Kajoshaj v. New York City Dept. of Educ., 543 Fed. Appx. 11, 15 (2d Cir. 2013); Caviezel v. Great Neck Public Schools, 739 F. Supp. 2d 273, 285, 264 (E.D. N.Y. 2010); Cude v. State, 377 S.W.2d 816 (1964).

[xx] Steve P. Calandrillo, Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?, 37 U. Mich. J.L. Reform 353, 353-54 (2004).

[xxi] Id.