The slogan for this year’s World Immunization Week (April 24 to April 30) was “Protected Together: Vaccines Work!” The message is particularly relevant as “vaccine hesitancy” is listed by the World Health Organization as one of the top 10 threats to global health. Even countries like the United States, where vaccines are readily available, are experiencing avoidable disease outbreaks.

In 2000, the United States “eliminated” measles, which means there was an absence of continuous disease transmission for greater than 12 months, but the disease is back with more cases reported in the first four months of 2019 (704 as of April 26) than were diagnosed in any full year since 2000; and the list of impacted communities is growing.

Measles Facts

Measles is a highly contagious disease that causes skin rash, spots in the mouth, fever, cough, runny nose and red watery eyes. Complications include ear infections, diarrhea, pneumonia, encephalitis, hearing loss, brain damage and death. According to the Centers for Disease Control, one out of every four people who contract measles will be hospitalized, and [f]or every 1,000 children who get measles, one or two will die from it.” By comparison, only 5 to 15 percent of vaccinated children will develop minor symptoms from the M.M.R. vaccine, which is 97 percent effective at preventing measles. More serious complications, including encephalitis, are possible, but the risk is far less than that resulting from the disease itself.

 

A very small percentage of people are allergic to the egg and gelatin proteins used to produce M.M.R. vaccines, and there have been only “33 confirmed vaccine-triggered anaphylaxis cases among 25,173,965 vaccine doses, which corresponds to a rate of 1.3 cases of anaphylaxis per million vaccine doses.” Anaphylaxis in an otherwise healthy person is serious, but not fatal, when properly treated with epinephrine. The federal government maintains an adverse reaction reporting system and provides “no fault” compensation to individuals who develop serious complications from vaccines.

Contrary to the fears of some parents, the current M.M.R. vaccine contains neither mercury, thimerosal (a mercury compound) nor aluminum, and there is absolutely no scientific study indicating that autism is caused by the M.M.R. vaccine. Even the 1998 report by British gastroenterologist Andrew Wakefield that is heralded by some, but repudiated by the medical community, merely noted a reported coincidence, in a very small sample of children, between bowel inflammation, autism symptoms and the administration of the M.M.R. vaccine. The report itself succinctly states: “We did not prove an association between measles, mumps, and rubella vaccine and the syndrome described.”

A 2017 review of medical research conducted by the National Vaccine Information Center, a nonprofit that supports voluntary vaccination choices, found no study that proved a causal relationship. While noting that “privately funded research continues to investigate the potential association,” the report recognized that “the majority of doctors and health officials reject the suggestion that M.M.R. vaccine is associated with the development of autism in children.”

Vaccines are developed by medical researchers and recommended for immunization by various public and private organizations, such as W.H.O. the Centers for Disease Control and Prevention and the American Academy of Pediatricians, using the most accurate scientifically verified information available. While a healthy dose of skepticism is appropriate when dealing with Big Pharma, medical professionals review reported data on vaccine efficacy and adverse reactions and make adjustments to doses, schedules and vaccine ingredients as more is learned. For example, concerns related to thimerosal led to its removal from the M.M.R. vaccine used in the United States; and an increased rate of febrile seizures found in patients given M.M.R.V., a combined varicella (chicken pox) and M.M.R. vaccine, led to improved parental notification regarding the risks and benefits of available vaccines.

Immunization Laws and Exemptions

The United States government does not enforce vaccine protocols except with regard to visa applicants and certain federal employees. As in many countries, immunization standards are enforced primarily through state and local public and private school registration requirements. This ensures near universal coverage and, by eliminating infected disease carriers, creates a herd immunity for the very young who have not yet been vaccinated, pregnant women who should not be vaccinated and those with compromised immune systems or severe allergies who cannot withstand vaccination. Every suitable person who is not vaccinated increases the risk of infection for others and leaves communities vulnerable to disease outbreaks.

As in many countries, immunization standards are enforced primarily through state and local public and private school registration requirements.

In Jacobson v. Massachusetts (1905), the Supreme Court upheld the power of the states to require vaccination to protect the public health, and in Prince v. Massachusetts (1944) it opined that “[t]he 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.” Simply put, the First Amendment does not bestow the right to refuse vaccination against contagious diseases.

Nevertheless, all but three states, California, Mississippi and West Virginia, currently permit religious or personal exemptions from vaccination requirements. None of the major religions practiced in the United States, including Christian Science, prohibit vaccinations. But individual adherents may object based on dietary restrictions (the gelatin used in some vaccines is pork- or bovine-based), pro-life disapproval (some vaccines use “descendent cells” from abortions), or the belief that “God made me perfect” or will heal the faithful.

Religious exemption statutes are not uniform. Some states, such as New York, put the burden on parents to convince school officials that their objections to specific vaccinations are based on “genuine and sincere religious beliefs.” Parents who appeal the denial of exemption requests have the burden of proving to a court that their beliefs are sincere and religiously based. This risks unconstitutional judicial “entanglement” with religion, but this law has been upheld by the U.S. Court of Appeals. Other states, such as Indiana, simply require parents to submit a written statement indicating they have a religious objection to vaccination.

Non-religious objections to vaccination include a distrust of pharmaceutical companies and politicians, opposition to animal testing and simple libertarianism. State personal conscience statutes vary, but generally they do not require parents to justify their objections. At most, parents may need to indicate they understand the consequences of non-vaccination. Washington State, for example, which currently is experiencing a measles outbreak, provides an exemption form that requires objectors to indicate a medical professional has informed them of the benefits and risks of immunization.

Although the First Amendment does not require states to grant religious exemptions to vaccination requirements, state Religious Freedom Restoration Acts provide additional rights to religious adherents and require state laws that substantially burden religious rights to be narrowly tailored to support a compelling government interest. If the 21 states with R.F.R.A.s tighten their exemption laws to better protect their residents from contagious diseases, their courts might be required to second-guess public health officials and consider whether vaccination is the least restrictive method to achieving public safety.

Public Health Emergencies

Even states that permit religious or personal exemptions may take emergency action to protect public health during crises. The current measles outbreak in New York precipitated two emergency health orders in Rockland County and one in New York City. The first Rockland County order, which excluded unimmunized students from schools and public places, was enjoined because the judge determined the outbreak of 166 cases in a population of 330,000 did not qualify as an “epidemic” warranting emergency measures. By April 25, the number of confirmed cases rose to 200 and the county issued a second emergency order enforcing a less restrictive exclusion of anyone with an active case of measles or who recently has been exposed to the measles virus. Time will tell whether this order also is enjoined.

Every parent wants happy and healthy children, but unless we literally live on a deserted island, we are “a part of the main” and owe an obligation to our neighbors to protect them as well as ourselves.

New York City’s emergency declaration excludes unimmunized children from schools and requires every adult and child who lives, works or resides in specified ZIP codes to be vaccinated. Violators are subject to a $1,000 fine. The judge deciding a challenge to this order determined the measles outbreak in Brooklyn—which at the time included 285 measles diagnoses and has since jumped to 390 confirmed cases in a borough of 2.5 million people— is an epidemic and refused to enjoin the emergency decree. (“A fireman need not obtain the informed consent of the owner before extinguishing a house fire,” the judge wrote. “Vaccination is known to extinguish the fire of contagion.”) An appeal has been filed.

Every parent wants happy and healthy children, but unless we literally live on a deserted island, we owe an obligation to our neighbors to protect them as well as ourselves. As the Supreme Court held in Jacobson v. Massachusetts (1905), when it upheld mandatory smallpox vaccination:

[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.

When it comes to vaccinations for polio, measles and other dangerous diseases, that may mean accepting the risk that our child might be one of the very few who has a serious reaction and suffers harm. The alternative is to knowingly leave the most vulnerable among us—infants, pregnant women and their unborn children, the immunocompromised, and the highly allergic—completely exposed. Understandably, this is not something our government wants to allow.

Ellen K. Boegel is America’s contributing editor for legal affairs.