Vaccination Law 101: A Guide for Children’s Lawyers

Today, U.S. children are typically vaccinated against 11 deadly, and formerly common, diseases: diphtheria, Hib disease, hepatitis B, measles, mumps, pertussis (whooping cough), polio, rubella, pneumococcal disease, tetanus, and varicella (chicken pox). But it wasn’t always so. Vaccines are a relatively recent development in medical history. The world’s first vaccine, for smallpox, was discovered in the late 1700s. A hundred years later, Louis Pasteur discovered the second vaccine, for rabies. By the mid-1900s, technological and medical advances drove more rapid vaccine development, and in 1963, the first measles vaccine was approved.

Before the measles vaccine became available, up to four million Americans contracted the disease every year. By 2004, that number was reduced to just 37 individuals. Measles was therefore declared “eliminated” in the United States years ago, but outbreaks still occur when travelers from other countries enter the United States and transmit the disease to unvaccinated individuals here. These outbreaks have led to fierce debate between supporters of the measles vaccine and those opposed to it. And those debates, in turn, have led to vaccine mandates and to challenges to those mandates. This article reviews some of that history.

Vaccination Laws Emerge

As vaccination developments evolved, the law did, too. Britain was the first country to mandate vaccines in 1853, requiring babies to be inoculated against smallpox. Two years later, Massachusetts became the first state to use its police powers to require smallpox vaccinations. When, some 50 years later during a smallpox outbreak, the vaccination requirement was challenged, the U.S. Supreme Court in Jacobson v. Massachusetts (1905) held that there is no constitutional right for every person to be free of every restraint; rather, all persons, as a condition of citizenry, could be subjected to some form of restraint for the public good. Accordingly, the country’s first objection to mandatory vaccination was defeated.

Almost two decades later, the Supreme Court in Zucht v. King (1922) upheld a Texas school exclusion law that denied school enrollment to unvaccinated children. And in 1944, the Supreme Court in Prince v. Massachusetts (1944) again made clear that the state’s interest in public safety takes priority over religious freedom and the right to family privacy. Thus, time and again, the use of a state’s police power to uphold public health has taken priority over the right to privacy or to religious freedom or to education. Accordingly, over the next several decades, because of the ease, speed, and deadly consequences of disease transmission in schools, every single state came to enact some form of mandatory vaccination requirement, along with a school exclusion sanction for unvaccinated children.

Exemptions to State Vaccination Laws

However, the power to mandate vaccines is not limitless. Every state, for instance, also permits one or more exemptions to mandatory vaccination of school children, though the numbers and types of exemptions are shrinking, and shrank further while this article was being written.

Medical exemptions. All states provide exemptions for medically fragile children. Each state defines its own criteria for satisfying this exemption, but all include the same general principles: exemptions for infants too young to receive the vaccine and for anyone with a weakened immune system for whom the vaccine would pose a known medical threat (such as a child undergoing chemotherapy). Typically, a medical exemption must be written by a doctor and may be either permanent or temporary, with temporary exemptions lasting no more than 12 months, at which time the exemption must be renewed, the vaccination obtained, or a school exclusion must take effect.

A medical exemption must conform to certain Centers for Disease Control guidelines and may include both contraindications (a condition that increases the risk for a serious adverse reaction) and precautions (a condition that might increase the risk of a serious adverse reaction, might cause “diagnostic confusion” in a patient, or might compromise the ability of the vaccine to produce immunity). Medical exemptions may also be obtained through blood titers showing immunity has been achieved by surviving the disease, such as a blood test showing chicken pox antibodies. (This is also sometimes known as demonstrating “serological immunity.”)

Recently, as states have moved to eliminate nonmedical exemptions or made them more difficult to obtain (see below), applications for medical exemptions have surged. In California, for instance, the elimination of “personal belief” exemptions in 2015 resulted in a spike in medical exemption applications thereafter.

Religious exemptions. Most states also provide a religious exemption, though five currently do not: California, Maine, Mississippi, West Virginia, and now New York, which eliminated religious exemptions this year in response to a massive measles outbreak believed to have originated in religious communities in Brooklyn and other New York counties. Numerous other states are following suit by considering legislative reforms to end their own religious exemptions.

The source of a religious exemption may not be easy to identify. A church that relies on faith healing, such as the First Church of Christ, Scientist (Christian Scientists), is one example of a clear religious objection to vaccination. A church that objects to a vaccine component, such as the Jehovah’s Witnesses’ objection to vaccines made using blood products, is another, though this church reversed its historical objection to most vaccines and now permits them because most are not derived from human blood (excluding tetanus and rabies shots, which are manufactured using blood products). Islam and Judaism do not permit the consumption of pork, yet some vaccines are manufactured using porcine gelatin (including some types of measles, mumps, rubella, and flu vaccines), leading some adherents to argue that they may not take the vaccine. Jewish law, however, also requires prevention of harm to the body, especially during an epidemic, which is why Jewish leaders have come out in support of vaccination during the recent outbreaks in New York, despite their incorporation of porcine gelatin. Islamic leaders have similarly relied on the doctrine of necessity to urge the faithful to get vaccinated despite porcine gelatin, until an alternative can be developed. Thus, whether a religion does, in fact, oppose vaccinations is a highly fact-intensive question and may involve the type of vaccine, whether or not there is a current epidemic, and geography, as vaccines are manufactured somewhat differently from region to region.

In theory, a religious exemption permits an individual to decline mandatory vaccination due to a sincerely held religious belief; however, as described above, this right is not absolute and will yield to the interest of the state in preventing or controlling a public heath emergency. The Supreme Court made clear over a century ago that not only may states require vaccinations as a condition of school attendance (public or private) but also in an emergency all individuals—and not just school children—may be subjected to compulsory vaccination. Requiring vaccinations does not violate the First Amendment plain and simple, and states are therefore not required to offer religious exemptions to vaccination at all.

But when a state does choose to offer a religious exemption, it must set out the criteria for an individual to satisfy. Some states rely merely on a signed form claiming a sincerely held religious belief, making it easier and cheaper for parents to avoid vaccination by signing a form, rather than comply with it by taking a child to the doctor. Other states might require a letter signed by a spiritual leader.

Recent objections to religious exemptions cite the lack of religious authority on which claims of religious opposition may be based (mistake) or concerns that some parents misuse claimed religious exemptions to cover up for non-religious objections (subterfuge).

Philosophical exemptions. Philosophical exemptions are also known as personal belief exemptions, and they are treated similarly to religious exemptions. About a third of states currently provide for philosophical exemptions, though this number, too, is expected to decline due to recent outbreaks. This exemption is for individuals who hold a conscientious objection to vaccines, including moral, ethical, and personal beliefs.

Do Children Have the Right to Vaccinate?

The World Health Organization recently declared the anti-vaccination movement to be one of the 10 greatest current threats to global health. Given measles and mumps outbreaks across the country and vaccine debates playing out across social media and on the nightly news, teens are increasingly concerned about their own health care rights, including their right to be vaccinated. Teens also saw one of their own, Ohio high school senior Ethan Lindenberger, testify before Congress this past March about being unable to get vaccinated over his parents’ objections until he turned 18. While many states do at some point provide access to minors for treatment of certain stigmatizing medical needs such as drug treatment, contraception, sexually transmitted diseases, and mental health treatment (under the mature minor doctrine), most do not provide for the ability to obtain routine childhood vaccinations without parental consent.

Several states have taken notice. Backed by the local chapter of the American Academy of Pediatrics, a bill pending in New York would permit children to consent to vaccinations starting at 14 years of age. In Washington, D.C., another bill would allow a child of any age to consent to vaccinations provided the child is able to comprehend risks and benefits of getting the shots. In addition, emancipated minors may consent to their own health care.

Concerned children’s advocates can get involved in their own states to push for vaccination rights. Conscientious practitioners should always inquire whether their child clients want to see see a health care professional but should now also offer assistance if there is a concern about vaccinations. And for those wanting more information, the Centers for Disease Control’s website is a treasure trove of news, statistics, and additional resources.