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

• Author: Megan Joy Rials
• Position: J.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 209-242

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 Outbreaks 6 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 the 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 Kaplan, 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 , NAT’L 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 time 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. Massachusetts 17 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 2013, 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 PRACTICE 262, 264 (Richard A. Goodman et al. eds., 2d ed. 2007). 14. States with Religious and Philosophical Exemptions from School Immunization Requirements , NAT’L 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 state 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 36–37. 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. Society 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-GYCT]. 23. States with Religious and Philosophical Exemptions from School Immunization Requirements , supra note 14. 24. Id. 212 LOUISIANA LAW REVIEW [Vol. 77 details the different approaches lower courts have taken when analyzing exemptions, with an eye toward the solution of banning philosophical exemptions while allowing religious exemptions. Part IV proposes the solution of banning philosophical exemptions and allowing religious exemptions as a policy matter and suggests a change in the wording of state vaccination legislation to meet Free Exercise, Due Process, and Establishment Clause requirements. I. ALL OUR YESTERDAYS: PARENTAL RIGHTS V. VACCINATION LAWS The state has an interest in vaccinating its citizens to safeguard them from diseases; these disease control efforts, however, might conflict with the freedom of parents to raise their children as they wish. Whether the issue is considered a parental rights or a states’ rights issue controls the answer to the questions surrounding exemptions to state vaccination laws. The Supreme Court has heard cases regarding parental authority that are wholly separate from cases involving vaccination laws. The cases the Court has heard regarding vaccinations held that the state has the power to mandate vaccination laws. 25 Parental rights cases, however, have generally held that parental authority is protected under the Due Process Clause and sometimes the Free Exercise Clause from the states’ attempts to interfere with parental decisions regarding how children are raised. 26 An analysis of exemptions to state vaccination laws under parental rights case law changes the discussion from one of states’ rights to enact laws to protect the public from disease to one of parents’ rights to raise their children as they deem fit. 27 A. Constitutional Protection of Parental Rights On several occasions, the Supreme Court has recognized the importance of parental rights. The protections afforded to parental rights fall into two categories: Due Process protections and Free Exercise protections. 28 The Court has...