Giving families their best shot: a law-medicine perspective on the right to religious exemptions from mandatory vaccination.

Author:Lu, Hope

INTRODUCTION I. Defining The Problem: The Vaccine Controversy II. Mandatory Vaccination And Free Exercise Legal Framework A. The Supreme Court's Public Health Jurisprudence B. The Supreme Court's Free Exercise Jurisprudence C. The States' Current Statutory Framework III. Lower Court Decisions In Disarray: To Exempt Or Not To Exempt A. Avoiding the Constitutional Question: Exceeding Statutory Authority B. Facing the Question: The Constitutional Free Exercise Right Exists C. Facing the Question: The Constitutional Free Exercise Right Does Not Exist D. A New Law-Medicine Perspective: The Free Exercise Right Can Exist IV. To Exempt: Arguing For A Limited Right To Religious Exemption A. Rejecting "Overrule Jacobson" and Accepting "Update Jacobson" B. Rejecting the "Full Exemption" Approach C. Rejecting the "No Exemption" Approach and Keeping "Limited Exemption". V. A Compromise: Implementing A Novel Legal Framework A. Law-Medicine Analysis: Tweaking the Dual System B. Constitutional Analysis: Incorporating the Hybrid-Rights Exception into the Dual System CONCLUSION: APPLYING THE FRAMEWORK AND RELEVANT POLICY CONSIDERATIONS APPENDIX INTRODUCTION

In a Republican presidential primary debate in 2011, United States Representative Michele Bachmann brought the age-old vaccine controversy into the national limelight when she said the vaccine that prevents the sexually transmitted infection (STI) Human Papilloma Virus (HPV) was "dangerous" a surprisingly widespread sentiment about vaccines in general.' Many states have proposed legislation to make the HPV vaccine a mandatory prerequisite for children entering school; Virginia and the District of Columbia have enacted such legislation. (2) But for those who distrust vaccines, the HPV vaccine is no exception. (3) Michele Boettiger, a Texas mother of three girls, worried about the safety of the vaccine and the message sent regarding sexual freedom, especially because her Roman Catholic background taught her to "believe[] in abstinence until marriage." (4) Others have similar safety and religious concerns with vaccinations, even compulsory school vaccinations. (5) Thus, many states allow exemptions from mandatory school vaccinations, although the laws vary widely. In some states, all a parent has to do is assert that vaccines are contrary to their religious belief to receive an exemption. (6) In other states, no exemptions are allowed. As new vaccines are continuously developed, the nation's long-standing and widespread distrust of vaccinations, with concerns ranging from vaccine safety to conscientious objection, seems to be on the rise. (7)

New advances in technology have led to vaccines targeting viruses such as the incurable but preventable HPV, an STI that has a strong link to cervical, oral, and anogenital cancers as well as genital warts. (8) As public officials quickly convert these biomedical developments from recommended vaccines, like the HPV vaccine, into mandatory ones, which is where many state governments seem to be headed, new legal frameworks need to be created. (9) But the formation of these new legal frameworks raises central constitutional and policy questions, including: (1) whether the Constitution requires states to provide exemptions from compulsory vaccinations; (2) if the Constitution does not require exemptions, whether states should provide those exemptions; and (3) if states do provide exemptions, what the legal framework should be. The United States Supreme Court has not directly addressed the constitutionality of mandatory versus permissive exemptions from compulsory vaccination laws. (10) Because case law, legislation, administrative decisions, and scholarly discourse regarding exemptions from compulsory vaccination laws offer few concrete conclusions, (11) this issue requires further analysis.

This Note addresses exemptions from compulsory vaccination laws. Part I provides historical context to the age-old vaccine controversy and introduces current-day issues that add another layer of complexity to the vaccine narrative. Part II lays out the relevant legal principles that govern compulsory vaccination laws: the Supreme Court public health and free exercise jurisprudence as well as the state statutory frameworks. Part III describes the overly broad interpretations of the Supreme Court jurisprudence at the lower court level and the lower courts' confusion in addressing the constitutionality of a free exercise exemption. Part IV explores four avenues, advocating for the one that allows for exemptions in a certain set of circumstances. Part V sets up a novel three-tiered legal framework that addresses the law-medicine, constitutional, and policy levels of analysis.

Examination of these issues requires balancing the tension between constitutional law and public health law and more specifically, individual liberty and police power. The Institute of Medicine (IOM) defines public health as "what we, as a society, do collectively to assure the conditions for people to be healthy." (12) This broad definition clearly encompasses mandatory vaccination laws. (13) Mandatory vaccination advocates often quote the common law maxim salus populi suprema lex est, "the welfare of the people is the supreme law," to uphold a wide scope for the state's police power. (14) But just as vaccinations have been prevalent for centuries, antivaccinationism is "as old as vaccination itself." (15) Compulsory vaccination involves invasive medical technology that has potential risks. Thus, a more sophisticated legal framework needs to be established to accommodate new biomedical developments that are present in vaccination technology.


    Resistors to vaccines have often thought of vaccinations as a "greater risk to life and limb" than getting sick. (16) Although creating a framework where vaccinationists and public health advocates are the heroes and antivaccinationists are the villains may be easier, the narrative of the vaccine controversy is far more complex. (17) The earliest anti-vaccine campaigns date back as far as the earliest mandatory vaccine campaigns. (18) Although English physician Edward Jenner's first experiments with smallpox vaccination took place in 1796, vaccination entered into American discourse with the smallpox outbreaks in the United States in 1898. (19) State and local governments responded to those outbreaks by campaigning and requiring citizens to submit to vaccinations, which caused antivaccination movements across the nation. (20)

    In 1901, Cleveland made national news when its health officer, Martin Friedrich, who led vaccination campaigns across the city, (21) became "a reluctant hero of the antivaccination movement." (22) After witnessing individuals whom he had compelled to be vaccinated fall ill and die of tetanus, Friedrich stopped the vaccinations and ordered all patients infected with smallpox to be isolated from the overall population. (23) Instead of using vaccinations, Friedrich disinfected homes in the city with formaldehyde generators for months, and by the end of 1901 he seemed to have smallpox controlled. (24) Unfortunately, the success was temporary. (25) A homeless man from New Jersey entered Cleveland and swept the city with smallpox a year later; in the end, Friedrich cautiously tested vaccines for safety and reliability and finally stamped out the smallpox after two more years. (26) Thus, it was not only "old cranks" and "radicals" who had concerns about vaccinations as many vaccination proponents claimed.

    Despite public unrest with the idea of compulsory vaccinations, by 1942 nine states and the Territory of Alaska had enacted laws mandating vaccinations for diphtheria. (27) From 1958 to 1965, all fifty states enacted new legislation requiring school children to undergo vaccination for smallpox and other diseases. (28) But by 1971 there had been "no reported cases of smallpox in the United States in more than twenty years, [causing] the annual tally of six to eight deaths from complications of vaccination [to become] increasingly unacceptable." (29) As such, the U.S. Public Health Service recommended discontinuation of childhood vaccination against smallpox. (30) "Within three years, every ... state had repealed its smallpox vaccination mandate for schoolchildren." (31) Even with the rise and fall in public trust of vaccines, mandatory school vaccines have been required for years and are associated with successful reduction of infectious disease and establishment of herd immunity, which occurs when a threshold of vaccinated individuals is reached so that others may not need to be vaccinated to maintain a population of healthy individuals. (32)

    Compulsory school vaccination laws did not force children to get vaccinated; they only prevented unvaccinated children from being permitted to enroll in a public school. (33) This form of compulsion, however, leaves parents with only a few options, like homeschooling or private school--neither of which may be desirable. Thus, these issues have been especially important to parents. (34) The enacted and proposed compulsory vaccination program laws vary widely and are inconsistent in their application: some do not speak to exemptions at all and others allow medical, religious, or philosophical exemptions. (35) Some courts hold that there is no right to a religious exemption from mandatory school vaccinations, while others state that there is such a constitutional right. (36)


    The current legal framework for analyzing religious exemptions from mandatory school vaccination laws is composed of (1) the Supreme Court's case law on public health, (2) the Court's case law on free exercise and religion, and (3) each state's statutes governing compulsory school vaccination laws. Each of these legal components, including their inadequacies, is discussed below.

    1. The Supreme Court's Public...

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