Virtually no other set of public health laws have had as direct an effect on health as immunization laws. Strong laws lead to high immunization rates, which in turn lead to lower incidences of disease. Some diseases have been nearly eradicated such as polio, rubella, and until recently, measles. However, keeping immunization rates high takes constant vigilance. Unfortunately over the past two decades there has been a weakening of immunization laws in many states. When immunization laws are weak, it puts the public's health at risk. For instance, while all states allow medical exemptions to vaccines, and many allow religious exemptions, there are 20 states that also allow non-medical exemptions, meaning that parents may opt-out of vaccines for any reason and their children may still attend public schools. For years, the public health community has been watching the increase in the number of children not fully immunized, and have warned of a resurgence of dangerous diseases. Sadly, that time has come. Measles is back, and it hit Disneyland, “happiest place on earth.”
It's not surprising that California, a state that has seen dramatically rising exemption rates, was the setting for the most recent outbreak of measles. In response to the rising exemption rates, California lawmakers recently passed a law requiring parents opting out of vaccines to obtain the signature of a provider stating that they have been counseled on the risks and benefits of vaccines. This was an excellent step in the right direction to protect Californians, but considering the extent of the outbreak, it may have been too little too late. The measles outbreak that originated at Disneyland has so far affected 102 people from 14 states and Mexico. Unfortunately, this is not an isolated occurrence. There have been an additional 23 outbreaks over the past year, with cases reported in 27 states and affecting 644 people, the most cases since measles was declared eliminated from the US in 2000.
There are many ways that laws can be strengthened to protect the public from the measles. However, as with most law aimed at protecting the public’s health, individual rights must be balanced against the risk of harm to the community. For example, the risk of harm to individuals and to property is high if a person drives while intoxicated, therefore we prohibit it. In the context of immunizations, if there are many unvaccinated people in the community, the risk of an outbreak of disease is very high. With the threat of measles returning to the U.S. as a widespread disease, it’s time to have a national dialogue about our social contract with each other and the risk of harm to the general community if immunization rates continue to drop. The risk of harm from immunization to the individual is low. The Measles, Mumps, Rubella (MMR) vaccine has been used for decades and has an excellent track record for safety (despite the misinformation that the anti-vaccine community would like people to believe). However, the risk to the public is very high if there is an outbreak. According to the CDC, measles is so contagious that if one person has it, 90 percent of the people close to that person who are not immune will also become infected. And it’s not just the children who are unimmunized who pay the price. The very young (under 12 months of age) and those with a weakened immune system and cannot be immunized are at the highest risk. If a person becomes infected with the measles there are severe consequences including pneumonia, brain damage and death.
With the outbreak that originated in Disneyland continuing to spread, states clearly have a compelling interest in strengthening immunization laws to protect those among us who are too sick or too weak to be immunized. The time has come to develop more aggressive strategies for protecting the public’s health. Some strategies that could be considered:
Reduce or eliminate non-medical exemptions: In the U.S., all states have requirements for kindergarten entry and many have also added adolescent vaccines to the school requirements. School entry requirements are highly effective in achieving and sustaining high immunization rates, yet the allowance of non-medical exemptions and the ease in obtaining these exemptions have slowly chipped away at the protections these requirements provided. And now the rate of disease is climbing. We must eliminate or significantly reform the laws allowing non-medical exemptions. While non-medical exemptions are permitted in 20 states, there is no constitutional requirement that these exemptions be permitted. In fact, the majority of states (30) do not permit non-medical exemptions. Some states have or are currently taking steps toward limiting or eliminating non-medical exemptions. For example, a 2012 bill in the Vermont Senate proposed the removal of philosophical exemptions from the state’s school vaccination requirements. Also, several states including Washington (Wash. Rev. Code § 28A.210.090) and Oregon (Or. Rev. Stat. § 433.267), now require parents who request a non-medical exemption to provide evidence that they were advised by a health care provider about the risks and benefits of immunization.
Pursue Tort Claims: Some legal scholars have suggested examining the viability of bringing a cause of action against parents who refuse to immunize, and whose decision results in the spread of a vaccine-preventable disease. Much has been written about the potential for such a cause of action to be successful, how the case might be built, who might have standing to bring a cause of action and the likely outcomes in different scenarios. In the face of the current measles epidemic the viability of this type of legal action could be tested in an effort to compel parents to take responsibility for immunizing their children and for protecting others.
Actively engage in foreign relations: As concerning as the measles cases are in the U.S., there is an even scarier scenario playing out in Europe and other parts of the world. Unlike the U.S., most countries do not require any vaccines for school entry. Children in other countries get their immunizations on a recommended schedule, usually determined by the country’s public health officials. If they have not received a vaccine by the time they start school, there is no mechanism to compel their parents to get them up to date. Last year there were 4,151 cases of measles in Europe, compared with 644 in the U.S. Since measles was declared eradicated in the U.S. in 2000, every outbreak has been tied to someone who traveled overseas and brought the disease home with them. Vaccine-preventable diseases are high in many countries in Europe and across the developing world. With infectious diseases, what happens in one country has far reaching effects in the U.S. This is why we have put so many resources into eradicating polio. Until there are no more cases, we are all at risk because diseases can and do reemerge.
In order to truly impact the diseases coming into this country, we need to take an active role in helping other countries overcome their challenges in the fight against vaccine-preventable diseases. Access to care, affordability, logistics and education are all factors that contribute to low immunization rates in other countries. Additionally, with the rise of Neglected Tropical Diseases (NTDs) in the U.S., new opportunities for international collaborative research and vaccine development are possible. In order to protect Americans there needs to be increased efforts to address all of these challenges through vaccine diplomacy, vaccine development partnerships, increased support for immunization programs abroad and encouragement to implement strong laws and policies in other countries.
Note: The Network and the CDC Public Health Law Program will present a webinar on February 19 to examine the current measles outbreak in the U.S. and associated legal issues. Speakers will describe current vaccination recommendations, provide an overview of vaccination laws and exemptions, explore state temporary exclusion laws related to unvaccinated students, and highlight lessons learned by LA County in implementing legal disease control measures. More details here.
This guest post was prepared by Anna C. Dragsbaek, J.D., President/CEO of the Immunization Partnership, a nonprofit organization that educates individuals, parents and providers about the importance of immunizations, and advocates for evidence-based public policy and fosters collaborative efforts among immunization partners.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF