Religious & philosophical exemptions to mandatory school vaccinations: who should bear the costs to society?

• Author: Ciolli, Anthony

As of 1999, all fifty states mandate that parents vaccinate their children against at least some diseases, such as measles, rubella, and polio, as a condition of public school enrollment. (1) However, every state has also tailored its legislation to exempt certain individuals from these mandatory vaccinations. Not surprisingly, all states allow medical exemptions to their immunization requirement, under the belief that it makes no sense to force vaccines on children who are allergic to vaccines, have compromised immune systems, or would otherwise suffer more harm than good from receiving a vaccine. (2)

But other types of exemptions from mandatory school vaccination requirements have not been universally embraced. For instance, forty-eight states have instituted religious exemptions to their mandatory vaccination requirements, with West Virginia (3) and Mississippi (4) not believing religious beliefs are sufficient to exclude a child from the requirement. Far fewer states have instituted the more controversial philosophical exemption: only fourteen states recognize non-religious moral or philosophical opposition to vaccination as a legitimate reason to opt out of their school vaccination requirements. (5)

This Essay will discuss the impact that recognizing religious and philosophical exemptions to mandatory school vaccinations may have on society, with a particular focus on who should bear the costs of the negative externalities created by widespread use of such exemptions. Part I will discuss the rationale behind mandatory vaccinations and identify the costs associated with religious and philosophical exemptions. Part II will discuss the current state of school vaccination law and explain why society cannot expect legislatures to completely eliminate religious and philosophical exemptions or rely on the judiciary to provide a proper check on the abuse of such exemptions. Part III will then address the issue of who should bear the costs of such exemptions, arguing that state and local governments, and potentially the federal government, should institute measures to ensure that those who elect religious and philosophical exemptions reimburse the rest of society for the negative externalities they have created.

1. THE COSTS OF RELIGIOUS &PHILOSOPHICAL EXEMPTIONS

   Many scholars fear that "serious consequences will follow the proliferation of legally sanctioned exemptions to compulsory vaccinations." (6) Although many who support religious and philosophical exemptions view the decision to vaccinate one's child as an individual rights issue, such a focus ignores that the benefits of mandatory vaccination are communal as well as individual. Thus, it should come as no surprise that the cost of widespread non-compliance with mandatory school vaccinations will not only result in the loss of such communal benefits, but will also impose significant costs on the entire community.

   1. Non-Medical Exemptions Jeopardize Herd Immunity

      When a critical mass of a community's members are vaccinated from a given disease, "herd immunity" prevents that disease from gaining a foothold in the community. The very high percentage of immunized individuals serves as a "protective barrier" that keeps the disease from spreading to those who are too young to be immunized or have compromised immune systems due to old age or diseases such as AIDS. (7) Creating such a protective barrier through herd immunity has always been one of the major goals of mandatory school immunization laws--by immunizing virtually all school children in a given community, state governments can ensure that the "herd immunity" effect will continue in perpetuity, as community immunization levels continue to remain at the high percentage required to prevent the spread of disease. (8)

      Religious and philosophical exemptions may jeopardize herd immunity in certain communities. Although the percentage of the population that must be immunized to ensure herd immunity varies depending on the disease, it will remain a relatively large percentage--for instance, more than 90 percent of the population must be immunized in order to provide herd immunity protection from measles. (9) Given that a certain percentage of the population cannot receive a vaccine for legitimate medical reasons, even a relatively small number of individuals using religious and philosophical exemptions to exclude their children from mandatory school vaccinations can eliminate a community's herd immunity against certain diseases. (10)

      Not surprisingly, the loss of a community's herd immunity may result in an outbreak of that disease in the community. In fact, many such disease "hot spots" have arisen in communities with a relatively high number of religious exemptions. For example, America's last two polio outbreaks began in Amish, Mennonite, and Christian Science communities. (11) Outbreaks of other preventable diseases, such as measles and rubella, have also originated in communities where many parents have not vaccinated their children for religious reasons. (12)

   2. The Monetary Costs

      But such outbreaks have an impact beyond the suffering caused in those particular communities. The creation of disease hotspots due to widespread use of religious and philosophical exemptions "deals a serious monetary blow to our cash-strapped medical system." (13) For instance, the U.S. measles outbreak that took place between 1989 and 1991 created costs of more than $100 million in medical expenses alone. (14) Hepatitis B outbreaks attributed to low hepatitis B vaccination rates are expected to create "$700 million in medical and work loss costs." (15) In fact, "vaccine-preventable diseases impose $10 billion worth of healthcare costs and over 30,000 otherwise avoidable deaths in America each year." (16)

2. ELIMINATING RELIGIOUS AND PHILOSOPHICAL EXEMPTIONS IS NOT REALISTIC

   1. Current Legal Environment

      The U.S. Supreme Court has consistently affirmed a state's right to institute compulsory immunization requirements, for a state's interest in exercising its police power to promote communal health safety overrides an individual's liberty right to opt out from a vaccine. (17) The Court, in Prince v. Massachusetts, clearly stated that religious exemptions to compulsory school vaccination laws are not required under the Constitution:

      The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.... Parents may be free to become martyrs themselves. But it does not follow [that] they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. (18) Though religious exemptions to vaccination laws are not constitutionally required, they are not prohibited either. Thus, each of this nation's fifty states may, at each legislature's discretion, adopt religious or philosophical exemptions to their mandatory immunization laws that are as broad or as narrow as they wish, or--as is the case in Mississippi and West Virginia--even non-existent, with state constitutional law as the only significant legal limitation.

      It is in this legal context that many scholars have proposed "simple" and intuitive solutions to the religious and philosophical exemption problem. In particular...