Weighing the Risks: Can Parents Choose Not to Vaccinate?

Emily McClure, KLJ Staff Editor[1]

Parents have the right to rear their own children without interference from the government. They should be able to instill personal values, religious beliefs, and moral codes in their children without intrusion from anyone else, especially Uncle Sam. But, for the safety of those too young to care for themselves, the government has set restrictions on this freedom. For example, states have laws requiring booster seats in automobiles, restricting the purchase of tobacco until the age of 18, forbidding the distribution alcohol to minors. In order to protect children from disease and to increase the herd immunity, schools in the United States require children to be vaccinated. However, because of propaganda in recent years, this requirement is subject to several exemptions; in some states—Arizona,[2] Arkansas,[3] Colorado,[4] Idaho,[5] Louisiana,[6] Maine,[7] Michigan,[8] Minnesota,[9] Missouri,[10] North Dakota,[11] Ohio,[12] Oklahoma,[13] Oregon,[14] Pennsylvania,[15] Texas,[16] Utah,[17] Washington,[18] and Wisconsin[19]— parents may claim some sort of philosophical exemption to vaccinating their children. Such philosophical exemptions are established by statutory language expressing an exemption for a personal belief and not limiting exemptions for beliefs only for religious or spiritual reasons.[20] But, considering the risks involved, how is this legal? Does refusing to vaccinate a child create criminal liability for endangerment?

The CDC recommends the following vaccinations and provides a schedule for immunization for children up to 18 years of age: Hepatitis B, Rotavirus, DTaP (diphtheria, tetanus, acellular pertussis), Hib (Haemophilus influenza type b), Pneumococcal conjugate, Inactivated poliovirus, Influenza, MMR (measles, mumps, rubella), Varicella, Hepatitis A, Human papillomavirus, and meningococcal vaccines.[21] Of these vaccinations, the most highly contested are the DTaP vaccine and the MMR vaccine, because of their rare side effects. With any vaccination, as with any medicine, allergic reactions are possible, but such reactions only occur in less than one out of one million children vaccinated. [22] Other side effects have been reported with DTaP, such as seizure (one case out of 14,000 vaccines) and high fever (one case out of 16,000 vaccines).[23] MMR has reportedly caused side effects such as seizure (one case out of 3,000 vaccines) and temporary low platelet count (one case out of 30,000 vaccines).[24] Parents have also reported cases of brain damage related to both vaccinations, but such reports are so rare, no evidence can prove such connection.[25] For the sake of argument, because the CDC reports allergic reactions as occurring in less than one in one million cases, let us assume that the cases of brain damage also occur in less than one in one million cases, though evidence suggests this is a gross overestimation.

But the risks associated with these diseases far outweigh the risks associated with the vaccines. Take, for example, diphtheria, which is prevented by the DTaP vaccine. Diphtheria once presented a threat of major illness and death among children in the United States; in 1921, the United States recorded 206,000 cases resulting in 15,520 deaths.[26] This means that 8% of all diphtheria cases resulted in death, or 2 deaths for every 25 diagnosed cases. Following 1921, rates dropped quickly as the United States began widely vaccinating children, and only five cases of diphtheria were reported in the United States in the past decade.[27] Diphtheria causes a thick covering to form in the back of the throat, leading to difficulty breathing, paralysis, heart failure, and even death.[28] While diphtheria is uncommon in the United States, it is still very common in developing countries; even Russia experienced an outbreak of 50,000 cases in the early 1990s.[29] Diphtheria is highly contagious through sneezing, coughing, or even laughing, and prevention depends almost completely on the DTaP vaccine.[30] The risk of seizure from the DTaP vaccine (one out of 14,000 vaccines) is over 1,000 times less likely to occur than the risk of death if one contracts diphtheria. Tetanus, also known as “lockjaw” causes tightening of the muscles in the body, and can lead to muscles in the jaw “locking” such that the patent cannot open his mouth.[31] Pertussis, also known as whooping cough, causes extreme coughing spells that result in difficulty breathing, and can lead to pneumonia, seizures, brain damage, and death.[32] The measles virus causes rash, cough, a runny nose, eye irritation, and fever, and can the virus can lead to infection, pneumonia, seizures, brain damage, and death.[33] The mumps virus causes fever, headache, muscle pain, loss of appetite, and swollen gland, which leads to deafness, meningitis, and sometimes sterility.[34] Rubella causes similar symptoms to measles, and can result in miscarriage if a woman contracts the rubella virus while pregnant.[35] Similar to diphtheria, pertussis, tetanus, measles, mumps, and rubella all have much higher risks of serious illness and death than the risks associated with the vaccinations.

These significant risks give rise to an interesting legal question when a parent chooses not to vaccinate her child based on a philosophical or personal belief exemption. By not vaccinating the child, the parent opens the child up for much larger risks and more serious complications than occur with vaccinations. Does the choice to not vaccinate a child rise to the level of legal endangerment?

Model Penal Code § 211.2 states that a person commits the misdemeanor of “reckless endangerment” if he “recklessly engages in conduct, which places or may place another person in danger of death or serious bodily injury.”[36] Under the Model Penal Code, “serious bodily injury” means “pain, illness, or impairment of physical condition which creates a substantial risk of death or which may result in serious physical disfigurement, or protracted loss or impaired function of any part of the body.”[37] While no state has adopted the Model Penal Code in its entirety, many states have adopted similar statutes.

In Arizona, where the legislature still allows for personal belief exemptions to vaccinations, a person commits endangerment by “recklessly endangering another person with a substantial risk of imminent death or physical injury.”[38] In order to be guilty of endangerment in Arizona, the state must show the defendant “was aware of and consciously disregarded a substantial and unjustifiable risk.”[39] Physical injury is defined broadly, only including “impairment of physical condition.”[40]

Without analyzing each state individually, the facts and statistics presented above raise more questions. Take diphtheria, an illness with a significant risk, as an example. Under the Model Penal Code, for diphtheria to qualify as “serious bodily injury,” a judge must find that the illness creates a substantial risk of death.[41] A reasonable judge could easily find that an 8% mortality rate constitutes “substantial risk” of death.

Thus, in states such as Arizona, where parents are allowed to consciously disregard a risk of death from diphtheria by refusing to vaccinate their children, there exists a cognitive dissonance between the vaccination exemption statute and the reckless endangerment statute.  Based on this analysis alone, it seems that not giving a child the DTaP vaccine would at least be considered endangerment in Arizona. Would a judge find such disregard to rise to the level of endangerment? Would states be willing to prosecute anti-vaccination parents? Perhaps the next few years will bring the answers.

[1] J.D. Candidate, May 2017.
[2] Ariz. Rev. Stat. § 15-872, 873 (LexisNexis 2015).
[3] Ark. Code Ann. § 6-18-702 (2015).
[4] Colo. Rev. Stat. § 25-4-902, 903 (2015).
[5] Idaho Code § 39-4801, 4802 (2015).
[6] La. Rev. Stat. Ann. § 17:170(A); 40:31.16 (2015)
[7] Me. Rev. Stat. tit. 20-A § 6255 (LexisNexis 2015).
[8] Mich. Comp. Laws Service § 33.9208, 9215 (LexisNexis 2015).
[9] Minn. Stat. Ann. § 121A-15 (LexisNexis 2015).
[10] Mo. Rev. Stat. § 167.181, 210.003 (LexisNexis 2015).
[11] N.D. Cent. Code § 23-07-17.1 (2015).
[12] Ohio Rev. Code Ann. § 3313.671 (LexisNexis 2015).
[13] Okla. Stat. tit. 70, § 1210.191, 192 (2015).
[14] Or. Rev. Stat. § 433.267 (LexisNexis 2015).
[15] 28 Pa. Code §23-83, 84 (LexisNexis 2015).
[16] Tex. Edu. Code Ann. § 38.001 (LexisNexis 2015).
[17] Utah Code Ann. § 53A-11-301, 302 (LexisNexis 2015).
[18] Wash. Rev. Code Ann. § 28A.210.080, 90 (LexisNexis 2015).
[19] Wis. Stat. Ann. § 252.04 (LexisNexis 2015).
[20] States with Religious and Philosophical Exemptions from School Immunization Requirements, Nat’l Conference of State Legislatures, http://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx (last visited Jan. 06, 2016).
[21] Recommended Immunization Schedule for Persons Aged 0 Through 18 Years, Ctr. for Disease Control and Prevention, http://www.cdc.gov/vaccines/schedules/hcp/imz/child-adolescent.html (last visited Jan. 06, 2016).
[22] Possible Side-effects from Vaccines, Ctr. for Disease Control and Prevention, http://www.cdc.gov/vaccines/vac-gen/side-effects.htm (last visited Jan. 06, 2016).
[23] Id.
[24] Id.
[25] Id.
[26] About Diphtheria, Ctr. for Disease Control and Prevention, http://www.cdc.gov/diphtheria/about/index.html (last visited Jan. 06, 2016).
[27] Id.
[28] Diphtheria, Tetanus, and Pertussis (DTaP) VIS, Ctr. for Disease Control and Prevention, http://www.cdc.gov/vaccines/hcp/vis/vis-statements/dtap.html (last visited Jan. 06, 2016).
[29] Nemours, About Diphtheria, KidsHealth, http://kidshealth.org/parent/infections/bacterial_viral/diphtheria.html (last visited Jan. 06, 2016).
[30] Id.
[31] Ctr. for Disease Control and Prevention, supra note 28.
[32] Id.
[33] MMR (Measles, Mumps, and Rubella) VIS, Ctr. for Disease Control and Prevention, http://www.cdc.gov/vaccines/hcp/vis/vis-statements/mmr.html (last visited Jan. 06, 2016).
[34] Id.
[35] Id.
[36] Model Penal Code § 211.2 (Am. Law Inst., Proposed Official Draft 1962).
[37] Model Penal Code § 210.0.
[38] Ariz. Rev. Stat. § 13-1201 (LexisNexis 2015).
[39] § 13-105(10)(c) (LexisNexis); see also State v. McGill, 213 Ariz. 147, 152 (2006).
[40] § 13-105(33).
[41] Model Penal Code § 210.0.