Who Calls the Shots?: Parents Versus the Parens Patriae Power of the States to Mandate Vaccines for Children in New York

• Publication year: 2021

Who Calls the Shots?: Parents Versus the Parens Patriae Power of the States to Mandate Vaccines for Children in New York

Emily R. Jones
Georgia State University College of Law, ejones82@student.gsu.edu

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WHO CALLS THE SHOTS?: PARENTS VERSUS THE PARENS PATRIAE POWER OF THE STATES TO MANDATE VACCINES FOR CHILDREN IN

NEW YORK

Emily R. Jones^*

Abstract

Vaccines are one of the top ten public health interventions of the twentieth century, lengthening lifespans and drastically reducing the burden of infectious disease in many nations. Childhood immunizations in particular have significantly impacted rates of infant and child mortality and morbidity, and nearly eliminated the presence of diseases like measles in the United States. Unfortunately, parents are increasingly seeking "religious" exemptions for mandatory childhood immunizations, which threatens to lead to a resurgence in these diseases, impacting children and schools.

This Note discusses New York's repeal of the religious exemption from its public health code in 2019. Passed in response to one of the largest measles outbreaks in decades, this measure reignited tension between those seeking personal and religious liberty, and those seeking safe and healthy school environments. This Note examines this law throughout its history and in relation to similar measures seen in other states and concludes that public health law has the authority to challenge personal liberty when health and safety are at stake.

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CONTENTS

Introduction................................................................................639

I. Background............................................................................641

A. Emergence of Vaccines.......................................................641
B. Legal History of Childhood Immunization Laws in the United States...................................................................................643
C. Vaccine Hesitancy and Statutory Exemptions....................645
D. Types of Nonmedical Exemptions ....................................... 646
E. The Legal Standard for Constitutional Challenges............649

1. Hostility Towards Religion...........................................651
2. Hybrid Rights and Parens Patriae.................................652

II. Analysis..................................................................................653

A. Free Exercise ...................................................................... 655
B. Parental Rights ................................................................... 659
C. Right to Education..............................................................660

III. Proposal..................................................................................663

A. The State Has the Power Under Parens Patriae to Compel Vaccinations........................................................................ 664
B. Conflict with Compulsory Education Laws........................666
C. Challenges..........................................................................668

Conclusion...................................................................................670

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Introduction

In June 2019, New York Governor Andrew Cuomo signed legislation undoing almost fifty years of precedent set by state law—legislation that eliminated religious exemptions from the state's mandatory vaccination law.¹ Schoolchildren in the state only had a few months to comply with the new law that mandates vaccines for all children entering school, except those with a documented medical exemption.² After a large outbreak of measles threatened the united States' measles elimination status, the New York legislature acted swiftly to ensure future generations of schoolchildren would not be at risk for this and other highly contagious diseases.³ Public health advocates applauded this event, while parents across the state protested and sued to prevent the law from going into effect before the 2019 school year.⁴

Vaccines are touted as one of the top ten most effective public health interventions of the twentieth century.⁵ Infectious diseases with high mortality rates that used to affect children across the

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country, such as polio, diphtheria, and measles, have been virtually eliminated in countries where vaccines are readily accessible.⁶ However, as disease rates declined, a new trend emerged that threatened to undo years of progress.⁷ Vaccine hesitancy and vaccine refusal from those who believe that vaccines cause unnecessary injury or illness to their children have spread in communities as quickly as the diseases that vaccines have eliminated.⁸ Social networks have fueled the fire in these groups, and many rely on values they claim stem from religion to ensure their children remain unvaccinated.⁹

In 2019, New York State saw the worst outbreak of measles since 1992, reporting over 1,000 cases by August of that year.¹⁰ This outbreak began in a close-knit religious community in Rockland County and, due to the infectious nature of the measles virus, spread rapidly through the community's population, many of whom were unvaccinated.¹¹ In 2015, a similar outbreak in California prompted the state's legislature to pass a law removing language providing for philosophical and religious exemptions.¹²

This Note explores the state of the New York law, considering the nationwide legal battles that mandatory vaccine laws have faced for

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the last century. Part I provides background on vaccines and the accompanying laws and specific legal controversies. Part II analyzes specific legal hurdles that the New York law will have to endure, including its probability of succeeding. Part III suggests the outcome of the legal challenges and recommend that other states looking to increase childhood vaccination rates should follow New York's lead.

I. Background

The emergence of the measles vaccine and corresponding mandatory vaccination laws set the stage for the 2019 New York statute. Subsequent lawsuits have challenged these laws on the grounds of violation of the Free Exercise Clause of the U.S. Constitution, parental rights, and interference with a child's right to education.¹³

A. Emergence of Vaccines

At the turn of the twentieth century, health and disease looked significantly different in the United States than they do today.¹⁴ The leading causes of death were pneumonia, tuberculosis, and diarrhea.¹⁵ One hundred years later, the new millennium saw a shift in the leading causes of death from infectious conditions to chronic ones.¹⁶

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The Centers for Disease Control and Prevention (CDC) published findings on the ten interventions that contributed to the vast reduction in morbidity and mortality from infectious conditions,¹⁷ some of which—despite their successes—are now facing ardent opposition.¹⁸

Although vaccination is more recent, the practice of using a bit of a disease to protect against future sickness is not new.¹⁹ Dating back to ancient outbreaks of smallpox is the practice of variolation, in which a piece of an infected scab was inserted into the nose of a healthy person, conferring future immunity to the disease on that person.²⁰ Vaccinations as we know them also emerged in an attempt to protect against smallpox.²¹ Dr. Edward Jenner, commonly known as the Father of Vaccination, is credited as the first to control smallpox outbreaks through a systematic approach to inoculation against the disease.²² This discovery ultimately led to the eradication of a disease that had killed millions of people for generations.²³

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Rather than retroactively treating disease, this initiative to prevent outbreaks led to the discovery of the vaccines that the population receives today.²⁴

Large-scale vaccination campaigns create herd immunity, where individuals are protected by the high vaccination rates of the population around them.²⁵ Immunity from a vaccine protects both the individual and the people in the population who may be unable to receive the vaccine.²⁶ Widespread public use of vaccinations to achieve herd immunity and protect children and adults from vaccine-preventable diseases emerged in the 1800s.²⁷ European countries began to order compulsory vaccinations for various groups at that time, with the first school vaccination requirements dating back to 1818.²⁸ History in the United States paralleled the trends in Europe; Massachusetts passed the country's first mandatory vaccination law in 1809.²⁹

B. Legal History of Childhood Immunization Laws in the United States

In 1904, compulsory vaccination laws withstood the first challenge in a case that still holds precedent today.³⁰ In Jacobson v.

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Massachusetts., a man challenged the authority of the state to require smallpox vaccinations.³¹ The Supreme Court ruled that the state law did not violate the Fourteenth Amendment and further that the government had the authority to compel vaccinations to prevent the spread of life-threatening contagious diseases.³² Although this case did not involve children's vaccinations, it set the precedent for public health law across the board and confirmed that states' "police power" encompassed the power to mandate vaccinations.³³

Fifteen years later, a second case solidified the government's authority "to exclude children from school for failure to present a certificate of vaccination prior to attendance."³⁴ In Zucht v. King, a San Antonio couple refused to vaccinate their child, claiming that mandatory vaccination violated the child's liberty without due process of the law.³⁵ The Court held that mandating vaccinations as a condition of attending school fell within the state's police power, thus affirming the state's right to impose their own requirements for immunization.³⁶ These two precedent cases caused many states to pass mandatory immunization laws, although they were not widely enforced until 1977.³⁷ Neither case addressed religious or

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philosophical...