Professor Marci A. Hamilton, The Vaccine for Pollyanna Attitudes Toward Public Health and Religious Beliefs

For decades the American Academy of Pediatrics and the Centers for Disease Control have strongly recommended that infants and children be immunized for a range of dangerous childhood diseases. The first five to be given include Diphtheria/Tetanus/Pertussis; H. influenzae type B; Hepatitis B; Polio; and Pneumococcal (PCV13). Most of us have no experience with these diseases, but in light of the current outbreaks of measles and now mumps, we obviously need to be educated, because each of these diseases can lead to death or permanent disability, from paralysis to deafness.

At this point, these deadly diseases and more can be prevented by widespread immunization, which reaches the level of “herd immunity,” or the percentage where the disease is effectively eradicated. The United States had made tremendous progress on this score, but we are moving back to square one. Herd immunity is a scientific fact and the outer limit for exemptions from vaccination. If herd immunity is not met, a disease remains a threat.

Many have attributed the current round of measles to the so-called “anti-vaxxers” who refused to vaccinate their children based on false medical conclusions that vaccines cause autism. But they did not invent the idea of exemptions from vaccination requirements; they simply exploited them.

There Is No Constitutional Right to Refuse to Vaccinate a Child

Adults may, for any reason, refuse medical treatment and prevention if they so choose. But, as the Supreme Court said in Prince v. Massachusetts, no parent may make a “martyr” of their child. The Court explicitly stated in Prince that there is no constitutional right to “claim freedom from compulsory vaccination for the child . . . on religious grounds. The right to practice religions freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” Nor is there a constitutional right to fail to vaccinate a child under any other constitutional grounds.

Therefore, the only legal route for a parent to avoid the mandatory vaccination laws is through the doors of the state houses. Legislators are responsible for the current exemptions endangering Americans. They are also responsible for repealing these misguided laws.

One Cause of the Reduction in Herd Immunity Is a Plethora of State Religious Exemptions to Vaccination Requirements

The blame for the fall in herd immunity belongs to the misguided religious exemptions to vaccination requirements in most states. These religious exemptions laid the groundwork for the anti-vaxxers to then argue for a right to a “philosophical” objection.

This foolishness was encouraged by a misguided social attitude and the Nixon Administration.

First, from the 1950s until relatively recently there has been a Pollyanna attitude in the United States toward religious actors that they always act in everyone’s best interest. Legislators have blindly (and at this point stupidly) granted religious lobbyists’ demands to be above the laws that apply to everyone else. The result has been a devastating decline in the public good, which in the case of vaccinating children is undermining herd immunity. This Pollyanna viewpoint has fed into an equally disturbing rise in the notion that each believer has a right to a self-enclosed universe of “rights” without reference to anyone else. Under any ordinary definition, this is narcissism.

We see both the Pollyanna and the narcissistic features in the vaccination and medical neglect exemptions that threaten children every day in the United States, and in the cancer of extreme religious liberty statutes like the federal Religious Freedom Restoration Act (RFRA), the federal Religious Land Use and Institutionalized Persons Act, and the state RFRAs.

Second, the Nixon Administration jump-started the current exemptions regime by incentivizing the states to create medical neglect exemptions for parents who treat sick children solely with prayer as a pre-condition for federal Medicare funding, as I discuss in chapter 2 of God vs. the Gavel: The Perils of Extreme Religious Liberty. This federal move normalized the concept that parents could or should be permitted to endanger their children for their faith. Now, children are dying in states like Idaho where some parents deny their children all medical care, let alone vaccinations.

A Second Cause of the Reduction in Herd Immunity Is the States’ Failure to Require and Track the Vaccination of All Children in the State

The public schools have been relatively successful in imposing a vaccination requirement on their students, although they can only enforce what the state law requires. Due to the misguided vaccination exemptions, there are too many children in the public schools who are not vaccinated. They are harmed, because they are more vulnerable to deadly diseases. We are harmed, because they reduce herd immunity. Further, these children are also harmed when there is an outbreak, because the school must bar them from school until the risk of contracting the disease has diminished—often a period of 2-3 weeks.

Once the states repeal the misguided exemptions, leaving in place solely the necessary medical exemptions, they need to institute systems that will ensure that as many children as possible are vaccinated.

How to do that? Right now, every state has a mandatory education law, and every child is required to be educated up to at least middle school. (Sadly, the Supreme Court, in a decision that defines “Pollyanna,” allowed the Amish in Wisconsin v. Yoder to foreshorten their children’s education, which opened the door for other believers to fail to fully educate their children, but that is an issue for another day.) Plus public schools make immunization a prerequisite for attendance.

The state should impose and enforce the same requirement for all children through the mandatory education laws, regardless of where they are educated.

How? The states impose minimum curriculum requirements on every child, whether educated in public or private schools or via home-schooling. That means each and every child needs access to textbooks and laboratory materials, among other things, and, the states provide such materials for free to every student in every context. Those teaching materials should not be provided without proof from the school (or home-schooling family) that each child has been vaccinated.

Homeschoolers too often educate their children under the radar, because of the difficulty in enforcing educational requirements family-by-family. But they are not completely beyond the regulation of the states. Homeschoolers successfully have forced numerous school districts to provide their children entry into extracurricular activities and special education resources. No child should be permitted to take advantage of those programs without proof of full vaccination.

The Federal Government and Insurance Industry Also Have a Role to Play

The federal government should incentivize the states to undo what the Nixon Administration started: to eliminate vaccination and medical neglect exemptions. For example, increase Medicaid and CHIP funding in those states that have reduced health risk and cost through the repeal of philosophical and religious exemptions.

We wear seatbelts because the insurance industry made it happen. Lives were saved. The insurance industry, which was the biggest winner under the Affordable Care Act, now should be actively and creatively working to ensure that every child is vaccinated (who can medically handle it). One approach to consider: the industry charges more for higher risks from obesity and smoking. The same reasoning applies ten-fold with respect to child immunization. The family that does not immunize should have to pay a heavy penalty in insurance premiums, and face vaccination as a pre-requisite to other medical treatments for their children.

Enough of the anti-vaxxers’ free ride, whether the objection is philosophical, religious, or neglect. Some have suggested parents who do not vaccinate should be sued if their child infects another child who dies or is permanently disabled. That is how the legal system works, and that is likely to happen. But lawmakers must focus now on preventing the need for such lawsuits in the future by ensuring children’s health and safety through vaccination.

It’s time to repeal vaccination exemptions in each state as well as reinforce and enforce vaccination requirements across the board. That means state and federal legislators and the powerful industry lobby must step up and do what is right.