By the Pricking of My Thumbs, State Restriction This Way Comes: Immunizing Vaccination Laws from Constitutional Review

AuthorMegan Joy Rials
PositionJ.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University.
Pages209-242
By the Pricking of My Thumbs, State Restriction This
Way Comes: Immunizing Vaccination Laws from
Constitutional Review
INTRODUCTION
In December 2014, Disneyland in California was far from the happiest
place on earth: an outbreak of measles began,1 lasting until April 17, 2015,
and infecting at least 147 people.2 The outbreak was blamed on an
insufficient number of vaccinated children, and it also infected many
children, some of whom were infants too young to be fully vaccinated
against the measles.3 From January 1, 2015 to September 18, 2015,4 the
total number of reported measles cases in the United States was 189,
covering 24 states and the District of Columbia.5
Outbreaks6 such as the Disneyland incident represent an alarming
trend in recent years. In 2014, the United States had a record number of
measles outbreaks, with 27 states reporting a total of 668 cases.7 This
number shattered t he record since the declaration of the elimination of
Copyright 2016, by MEGAN JOY RIALS.
1. Amy Taxin, 9 Measles Cases Linked to Disney Theme Parks in California,
ASSOCIATED PRESS (Jan. 7, 2015, 3:19 AM), http://www.seattletimes.com/life/travel
/9-measles-cases-linked-to-disney-theme-parks-in-california/ [http://perma.cc/G7QQ
-6VMP].
2. Alicia Chang, Large Measles Outbreak Traced to Disneyland is Declared
Over, ASSOCIATED PRESS (Apr. 17, 2015, 3:00 PM), http://news.yahoo.com/large
-measles-outbreak-traced-disneyland-declared-over-162831457.html [https://per
ma.cc/VE2M-B4RM].
3. Id.; Karen Kap lan, Vaccine Refusal Helped Fuel Disneyland Measles
Outbreak, Study Says, L.A. TIMES (Mar. 16, 2015, 5:30 PM), http://www.latimes
.com/science/sciencenow/la-sci-sn-disneyland-measles-under-vaccination-20150
316-story.html [https://perma.cc/WM4R-SY84].
4. See Measles Cases and Outbreaks, CTR. FOR DISEASE CONTROL AND
PREVENTION, http://www.cdc.gov/measles/cases-outbreaks.html [https://perma.cc/S
DB8-4CP6 ] (last updated July 20, 2016).
5. Measles, NATL FOUND. FOR INFECTIOUS DISEASES, http://www.nfid.org
/idinfo/measles (last visited Sept. 2, 2016).
6. The Center for Disease Control and Prevention (“CDC”) defines an
“outbreak” as three or more cases that are connected by time or geographic location.
Ctr. For Disease Control and Prevention, Measles—United States, 2011, 61
MORBIDITY AND MORTALITY WEEKLY REP., Apr. 20, 2012, at 253, http://www
.cdc.gov/mmwr/PDF/wk/mm6115.pdf [https://perma.cc/YXB7-LX6C].
7. See Measles Cases and Outbreaks, supra note 4.
210 LOUISIANA LAW REVIEW [Vol. 77
measles in 2000.8 In 2013, the U.S. experienced 11 outbreaks of measles,
with one large outbreak affecting unvaccinated Amish communities in
Ohio. 9 The total number of cases in 2013 was at least 175.10 In 2011, 17
outbreaks and 22 measles cases were reported, at the ti me marking the
highest number of measles cases in a given year since 1996.11 The Center
for Disease Control and Prevention (“CDC”) reports that most victims are
unvaccinated and that the disease spreads through unvaccinated groups.12
Thus, high vaccination rates are vital to prevent the spread of diseases.13
To ensure high vaccination rates, all 50 states have mandatory
vaccination laws requiring their citizens to be vaccinated.14 Three types of
exemptions from mandatory state vaccination laws exist: medical,
philosophical, and religious exemptions.15 Although medical exemptions
are not controversial, philosophical and religious exemptions are, not only
because of the possible threat the exemptions could create by lowering
vaccination rates,16 but also because unlike medical exemptions, they are
based on parental beliefs rather than the child’s medical condition. The
Supreme Court has never heard a case involving exemptions to state
vaccination laws and has heard only two cases involving vaccination laws
in general: Jacobson v. Massachusetts17 and Zucht v. King.18 Together
8. Id.
9. Id.; Measles Still Threatens Health Security, CTR. FOR DISEASE CONTROL
AND PREVENTION (Dec. 5, 2013, 12:00 PM), http://www.cdc.gov/media/releases
/2013/p1205-meales-threat.html [https://perma.cc/7K4H-LM3Q].
10. Measles Cases and Outbreaks, supra note 4; Measles Still Threatens Health
Security, supra note 9.
11. Measles—United States, 2011, supra note 6; Mike Stobbe, CDC: 2011 Was
Worst Measles Year in U.S. in 15 Years, ASSOCIATED PRESS (Apr. 19, 2012, 4:06
PM), http://usatoday30.usatoday.com/news/health/story/2012-04-19/Measles-worst-
year-CDC/54411802/1 [https://perma.cc/42DF-LMJG].
12. Measles Cases and Outbreaks, supra note 4. In 201 3, 11 outbreaks of
measles occurred. Three of these outbreaks included more than 20 cases, and one
included 58 cases. Id.
13. Kevin M. Malone & Alan R. Hinman, Vaccination Mandates: The Public
Health Imperative and Individual Rights, in LAW IN PUBLIC HEALTH PR ACTICE
262, 264 (Richard A. Goodman et al. eds., 2d ed. 2007).
14. States with Religious and Philosophical Exemptions from School
Immunization Requirements, NATL CONF. OF ST. LEG., http://www.ncsl.org/research
/health/school-immunization-exemption-state-laws.aspx [https://perma.cc/5HZZ-B3
B2] (last updated Jan. 21, 2016).
15. Id.
16. Malone & Hinman, supra note 13, at 265.
17. 197 U.S. 11 (1905).
18. 260 U.S. 174 (1922).
2016] COMMENT 211
these cases held that states have the police power to mandate vaccinations
and make them a prerequisite for attending school.19 Since Zucht in 1922,20
however, the Supreme Court has developed a line of jurisprudence that
recognizes parental rights as constitutionally protected.21 These parental
rights holdings conflict with the previous holdings of the Court’s
vaccination cases in Jacobson and Zucht because st ate laws forcing
parents to vaccinate their children over parental objections could violate
the parents’ constitutional rights.
This Comment argues that states should not allow philosophical
exemptions and should either retain or create religious exemptions that
meet certain requirements under the Free Exercise Clause, the Due Process
Clause, and the Establishment Clause. California and Louisiana differ in
their approaches to vaccination laws. As a result of the California
legislature’s controversial response to the Disneyland measles outbreak by
banning philosophical and religious exemptions,22 California is now
among the few states with the strictest vaccination requirements.23 In
contrast, Louisiana is among the states with the laxest vaccination laws,
which allow for both exemptions.24 Under the proposed solution,
California should modify its law to allow religious exemptions, and
Louisiana should ban philosophical exemptions.
Part I of this Comment details the Supreme Court’s jurisprudence
regarding parental rights. It explains how the protection that these cases
afford to parental rights under the Due Process Clause and the Free Exercise
Clause could provide a framework different from Jacobson and Zucht
through which to view state vaccination laws. It also gives a brief history of
the invention of vaccinations and explains the necessity of maintaining high
vaccination rates, in addition to discussing the three types of exemptions.
Part II analyzes the scarce Supreme Court jurisprudence on state vaccination
laws. It also explains the controversy surrounding California Senate Bill
277, which California’s legislature enacted in response to the Disneyland
measles outbreak, and compares California law to Louisiana law. Part III
19. Id. at 176; Jacobson, 197 U.S. at 3637.
20. Zucht, 260 U.S. at 176.
21. See Troxel v. Granville, 530 U.S. 57, 66 (2000); Wisconsin v. Yoder, 406
U.S. 205, 232 (1972); Pierce v. Societ y of Sisters, 268 U.S. 510, 534–35 (1925);
Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
22. Adam Nagourney, California Mandates Vaccines for Schoolchildren ,
N.Y. TIMES (June 30, 2015), http://www.nytimes.com/2015/07/01/us/california -
mandates-vaccines-for-schoolchildren.html [https://perma.cc/Z9XU-GY CT].
23. States with Religious and Philosophi cal Exemptions from S chool
Immunization Requirements, supra note 14.
24. Id.

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