The 2015 measles outbreak continues to resonate. Last month, California became the third state to ban vaccination exemptions for school entry based on religious and philosophical reasons, leaving only medical exemptions intact. Public health advocates declared victory, while families opposed to mandatory vaccinations regrouped to continue the fight, claiming that some constitutional rights are being violated.
Public health expert Wendy E. Parmett is the George J. and Kathleen Waters Matthews Distinguished Professor of Law and Professor of Public Policy and Urban Affairs at Northeastern University. He contributed an article to the July 22 issue of the New England Journal of Medicine exploring the evolving landscape of vaccination policy. We asked her to discuss some of the implications of the new law in California.
Why do advocates argue that all children must have up-to-date vaccinations for measles, rubella and other diseases before they can enter schools and childcare facilities?
Requiring children to be vaccinated before enrolling in school or daycare is one of the most effective tools we have to prevent outbreaks of vaccine-preventable diseases such as measles. Children are particularly susceptible to these diseases, which can spread quickly in a school or day care center when vaccination rates are low.
By requiring children to be vaccinated, we can foster “herd immunity,” which occurs when there aren't enough people who are vulnerable to a disease for it to spread through the community. Herd immunity protects children and adults who cannot be vaccinated or for whom vaccines do not provide immunity.
What are the constitutional issues at play in the vaccination mandate debate?
Opponents of vaccination have raised several constitutional claims. They said the vaccination requirements violate the 14th Amendment's due process clause, that amendment's equal protection clause and the right to free exercise of religion as protected by the First Amendment. Challengers also argued that vaccination requirements violate the right to education, which is recognized in many states.
Overwhelmingly, courts have rejected such claims, except in unusual and limited cases. In the landmark 1905 case, Jacobson v. Massachusetts, the United States Supreme Court upheld a Massachusetts law requiring all residents to be vaccinated against smallpox during an epidemic.
Less than 20 years later, in Zucht v. King, the Supreme Court rejected a challenge to a Texas law that required children to be vaccinated before entering school. In the nearly 100 years since Zucht, the pitches haven't changed their tune. Just last winter, the United States Court of Appeals for the Second Circuit rejected due process, equal protection and First Amendment challenges to New York's school vaccination law.
Why do you suggest in the NEJM article that health officials, rather than school principals, be tasked with overseeing compliance with vaccination laws?
School principals are educators, not health workers. Their demand to enforce vaccine laws puts them in an adversarial relationship with parents. This can undermine parents' confidence in their children's schools.