THE PUBLIC HEALTH DEMAND FOR REVOKING NON-MEDICAL EXEMPTIONS TO COMPULSORY VACCINATION STATUTES.

• Author: Tomsick, Emma

1. INTRODUCTION 131 II. BACKGROUND & HARM OF EXEMPTIONS 134 A. Religious and Personal Belief Exemptions 137 B. The Harm 140 III. ARGUMENT 143 A. Case Law Supports Lifting Exemptions to Compulsory 144 Vaccination Statutes B. Religious Exemptions 145 C. Philosophical "Personal Belief" Exemptions 148 D. Public Health Demands Revoking Exemptions to 149 Compulsory Vaccination: Herd Effect and Other Considerations IV. CONCLUSION: THE SOLUTION 151 I. INTRODUCTION

   In early January 2015, the California Department of Public Health was notified that an eleven-year-old unvaccinated child was suspected to have contracted the measles virus. (1) The child was exposed to the virus on a family trip to two Disneyland parks. (2) In a matter of days seven reported cases of measles were confirmed in California. (3) In a month, 125 cases were reported. California alone saw 110 cases. (4) The impact of this outbreak reached far beyond California's state lines. Children in Arizona, Colorado, Nebraska, Oregon, Texas, (5) Utah, Washington, Canada and Mexico were infected. (6) The common thread? All 125 reported cases could trace their origin to the same two Disneyland parks visited by the original child in late December. (7) Among those exposed to the Disneyland outbreak, 77 individuals were unvaccinated and 47 victims had undocumented vaccination status. (8) In response, the Center for Disease Control (CDC) offered a simple, yet poignant statement: "This outbreak illustrates the continued importance of ensuring high measles vaccination coverage in the United States." (9)

   Four short years later, in 2019, the United States saw the single largest outbreak of measles in recent history. Figures in early October indicate that there were 1,250 reported cases of measles this year alone. (10) This is the greatest number of reported cases since 2000, the year when measles was formally eliminated in the United States. (11) The 2019 outbreak, according to the CDC, was primarily caused by international travel from parts of the world where measles is still very prevalent, (12) and has been exacerbated by "pockets" of unvaccinated people. (13) Reports claim that the resurgence of measles in the United States and around the world has been fueled by the "anti-vaccination movement." (14) The recent 2019 outbreak effected communities in Rockland and Wyoming counties in New York and in El Paso, Texas very strongly. (15) Reports claim that these communities were largely effected as a result of international travel to areas like Israel where measles outbreaks persist. (16) Reports also suggest that the great deal of exposure to measles was exacerbated by the close geographic and cultural proximity within which the residents in these communities live. (17) Scientific literature has consistently demonstrated that parents of unvaccinated children tend to cluster, and thus, those communities see significantly higher rates of outbreak than others. (18) The CDC's statement from the 2015 Disneyland outbreak rings true. The continued importance of ensuring high measles vaccination cannot be overstated.

   The measles crisis has prompted state legislative bodies to face a seemingly impossible dilemma: eliminate both religious and philosophical exemptions to mandatory school vaccination statutes or sit by idly and allow measles to continue to run its course. As of June 2019, five states have neither religious nor philosophical exemptions to their mandatory vaccination statutes. (19) This Note argues that states should remove all religious and philosophical exemptions to compulsory vaccination statutes. The 2019 measles outbreak demonstrates that the anti-vaccination movement poses a legitimate risk to the health of the masses, especially to the most vulnerable members of our communities. If individuals continue to opt out of compulsory vaccination requirements, diseases that were eradicated decades ago will undoubtably return to the absolute detriment of those unable to protect themselves.

   Part II of this Note details the history of compulsory vaccination statutes, beginning with a discussion of the statutes that are presently in place. All fifty states have mandatory vaccination statutes for school-aged children. (20) Most states have exemptions to these vaccination requirements that allow parents to make the decision to not vaccinate their children. These exemptions fall into two broad categories: philosophical objections and religious exemptions. At present, forty-five states and Washington, D.C. allow religious exemptions to vaccination requirements, and eighteen states allow philosophical exemptions. (21)

   Part III discusses the legal history of these statutes. Time and time again, the Supreme Court has maintained that it is within the police power of a state to mandate vaccination for public school children. (22) These police power cases provide the necessary framework for strengthening compulsory vaccination statutes in a way that eliminates exemptions. Part III also analyzes the complex intersection between religious freedom, personal choice, and compulsory vaccination statutes. Additionally, Part III argues that lifting all exemptions--except medical--to compulsory vaccination statutes is in the best interest of public health and therefore overrides any private interest of the individual. Part III concludes by focusing on the frightening implications of continuing to allow exemptions. Vaccines are 99% effective, (23) and those who cannot be vaccinated (for medical reasons) are often protected from these horrendous illnesses by the so-called "herd effect." (24) But in order for this "herd effect" to actually work, vaccination rates need to be somewhere between 80 and 95%. (25) Religious and philosophical exemptions to compulsory vaccination create a dangerous reality for those who cannot be vaccinated.

   Part IV concludes this Note and argues that the only feasible means of successfully preventing another measles outbreak, or the outbreak of another serious disease, is to remove all non-medical exemptions to compulsory vaccination statutes. School-aged children are being put at risk to contract a deadly disease, therefore action must be taken to prevent this. The five states that do not have religious or philosophical exemptions to compulsory vaccination requirements serve as models for legislation that should be placed in every state. Precedent suggests that states would be within their police powers to eliminate all non-medical exemptions from their compulsory vaccination statutes.

2. BACKGROUND & HARM OF EXEMPTIONS

   The first school vaccination requirements date back to the 1850s. (26) Massachusetts was the first state to mandate vaccines in school to prevent the transmission of smallpox. (27) As the scientific understanding of the efficacy of vaccination continued to grow, more states implemented compulsory vaccination requirements. Shortly after Massachusetts' efforts to combat smallpox began, New York, Connecticut, Pennsylvania, Indiana, Illinois, Wisconsin, Iowa, Arkansas and California (28) followed suit. Initial efforts in these states were met with significant opposition. (29) The requirements were challenging for school administrators to enforce. (30) Parents and teachers simply stating that a child was vaccinated, without further evidence or inquiry, was considered "satisfactory evidence" of compliance with school vaccination procedures. (31) Historical evidence further suggests that vaccination opposition and hesitation is not new. Since the earliest requirements for compulsory vaccination, parents have resisted the efforts. Studies show that vaccination levels would sharply increase during the time of an outbreak, only to shockingly decline once the outbreak subsided in a community. (32)

   In the early 1970s, the transmission of measles began presenting great concern for school administrators. (33) In these years "states that had school vaccination laws for the measles vaccine had measles incidence rates of 40% to 51% lower than states without such laws." (34) States that took efforts to make these vaccinations widely available and those that threatened exclusion from schools for failure to comply were highly successful in the elimination and prevention of measles outbreaks. (35) More and more states began passing immunization laws. By the 1980-1981 school year, all fifty states had mandatory vaccination requirements for public school attendance. (36)

   Broadly speaking, the requirements and components of compulsory vaccination statutes vary from state to state. Currently, all fifty states have compulsory vaccination statutes for school-aged children. (37) Most statutes provide a comprehensive list of mandated vaccines. (38) Poliomyelitis, diphtheria, tetanus, pertussis, red (rubeola) measles, rubella, hepatitis B, mumps, and varicella are common in many state statutes. (39) In some states, if a child's family cannot afford to pay for the required vaccination, the relevant statute provides that the town or local jurisdiction will cover the cost. (40) Forty-five states, and the District of Columbia allow religious exemptions for compulsory vaccination. (41) Fifteen states allow parents to opt their children out of vaccination requirements on philosophical, or "personal belief" grounds. (42)

   States have taken nuanced and personalized approaches to exemptions. For example, the compulsory vaccine statute in Colorado requires the State to publish and make available to the public the percentage of children who have exemptions, (43) allowing parents to stay informed on immunity percentages in the area. Public health experts believe this type of transparency requirement advances two important societal goals. First, published records of vaccination rates allow parents of immunocompromised parents to make an informed decision about where their children can safely attend school. (44) Second, these records equip nongovernmental organizations and health...