Haven’t you “Herd”? The “Herd Mentality” And How Much Control Parents Have In Vaccinating Their Children

Sarah Hines, KLJ Staff Editor[1]

As of February 23, 2015, 154 cases of measles were reported in the United States.[2] This number is significantly greater than the historic national yearly average in recent years.[3] Many of these cases can be tied to a recent outbreak at Disneyland.[4] This recent measles outbreak has sparked much debate among Americans about mandatory vaccination. Some argue that vaccinating as many people as possible will prevent future outbreaks of preventable diseases, such as measles. Others argue that it is every parent’s right to control health care decisions for their children, including whether or not to vaccinate their children.Not only is measles highly contagious, but it can also cause severe complications such as pneumonia and encephalitis, which can ultimately lead to death.[5] The good news is that a vaccine exists which protects against measles.[6] In Jacobson v. Massachusetts, the Supreme Court upheld a state mandate which required vaccination against smallpox.[7] Many states, including Kentucky, created state laws to mirror this holding and such laws mandate vaccination against certain preventable diseases, including measles.[8] Proof of vaccination is often required for enrolling children into public school systems.[9]Exceptions do exist in every state for those individuals who cannot be vaccinated for medical reasons.[10] Many states also let parents opt out of vaccinating their children for religious reasons.[11]  Nineteen states allow parents to opt out of vaccinating their children for secular reasons of philosophy or philosophical beliefs.[12] It is this particular opt out policy for “personal beliefs” that is the source of debate.A small, but noticeable, group of parents opt out of vaccinating their children for personal reasons. These opponents of mandatory vaccination often pin their skepticism of vaccines on the purported safety of the vaccination.  For instance, many believe there is a link between vaccines and autism.[13] Others fear that vaccines can cause digestive health problems or brain damage.[14] Whatever the reason may be for avoiding certain vaccines, some argue that it is a parent’s right to decide whether to vaccinate their own child. As of 2014, thousands of kindergarten-aged children had not been vaccinated.[15]In opposition to these concerns is a concept called “herd mentality,” the driving force behind laws that require vaccination.[16] The idea is that if most of the people in any given population are vaccinated, then these vaccinated people will act as a barrier against those who cannot be immunized against a certain disease. Those who cannot be immunized will arguably not come into contact with the disease at all, thus slowing or even stopping the spread of certain diseases.Ultimately, the issue of mandatory vaccination comes down to an issue of public policy. The states are allowed to mandate vaccinations against certain preventable diseases.[17] Similarly, states can carve out any number of personal exceptions to allow parents to opt out of vaccinating their children. The more opt-outs that occur, the less effective the “herd mentality” argument becomes. It is important for states to weigh the risk of disease against the interests of parents who do not want to vaccinate their children. Many states, such as California, are considering legislation to end the “personal belief” exemption to vaccination.[18] Only time will tell how state laws will react to the current measles outbreak and its impact on the issue of parental control of health care decisions for their children.

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[1] University Of Kentucky College of Law, J.D. expected May 2016.

[2] Centers for Disease Control and Prevention, Measles Cases and Outbreaks (last updated Feb. 23, 2015), http://www.cdc.gov/measles/cases-outbreaks.html.

[3] Id.

[4] Jonathan Corum, Josh Keller, Haeyoun Park & Archie Tse, Facts About the Measles Outbreak (last updated Feb. 6, 2015), http://www.nytimes.com/interactive/2015/02/02/us/measles-facts.html?_r=0.

[5] Centers for Disease Control and Prevention, Complications of Measles (last updated Feb. 23, 2015), http://www.cdc.gov/measles/about/complications.html.

[6] Id.

[7] Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 858 (1905).

[8] E.g., KRS § 214.034.

[9] Id.

[10] Tom Frieden, Stop the Vaccination Debate, Newark Advocate (Feb. 23, 2015), http://www.newarkadvocate.com/story/opinion/columnists/2015/02/23/stop-vaccination-debate/23876185/.

[11] Jacob Gershman, Should Vaccination Be a Choice? In Many States, It Already Is, The Wall Street Journal L. Blog (Feb. 3, 2015), http://blogs.wsj.com/law/2015/02/03/should-vaccination-be-a-choice-in-many-states-it-already-is/.

[12] National Conference of State Legislatures, States With Religious and Philosophical Exemptions From School Immunization Requirements (last updated Feb. 23, 2015), http://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx.

[13] The Associated Press, Anti-vaccination parents explain their perspectives: 'We are not anti-science' (Feb. 23, 2015), http://www.oregonlive.com/health/index.ssf/2015/02/anti-vaccination_parents_expla.html#.

[14] Id.

[15] Ranee Seither, Svetlana Masalovich, Cynthia L. Knighton, Jenelle Mellerson, James A. Singleton & Stacie M. Greby, Vaccination Coverage Among Children in Kindergarten — United States, 2013–14 School Year (Oct. 17, 2014), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6341a1.htm.

[16] Sarah Arnquist, Herd Immunity — Vaccinations Protect Us All, The Health Care Blog (July 29, 2008), http://thehealthcareblog.com/blog/2008/07/29/herd-immunity-vaccinations-protect-us-all/.

[17] Jacobson, 197 U.S. at 858.

[18] See, e.g., Jenny Gold, Measles Outbreak Sparks Bid To Strengthen California Vaccine Law (Feb. 5, 2015), http://www.npr.org/blogs/health/2015/02/05/383988632/vaccination-exemption-blamed-for-measles-spread-in-california.

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.

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[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.