Immunity From Immunity? More Restrictions for California's Medical Vaccine Exemption

By Cassidy Hill, Associate Editor

In September 2019, California parents protested the state’s new legislation designed to increase the vaccination rates of school children.[1] All states require children to receive vaccinations for diphtheria, pertussis, polio, measles and rubella before enrolling in kindergarten, but these states also recognize certain exemptions.[2] The California law places heightened restrictions on the medical exemptions, reducing their availability to children whose parents oppose vaccination but whose state does not offer a philosophical exemption.[3] Many protesting the bill are part of the “anti-vax movement.”[4]

Public resistance to vaccines is nothing new. Edward Jenner’s scientific contributions during the eighteenth century gave rise to the study of immunology and vaccinations.[5] And, opposition towards vaccines persisted despite the devastating outbreaks of smallpox, measles, and polio.[6] People opposed vaccines for theological, political, and legal reasons.[7] Today we see the same points of opposition – primarily, the theory that vaccines contain harmful ingredients that cause autism and other maladies.[8] Despite the CDC’s assurances that vaccines are safe and do not cause autism,[9] public fear about the safety of vaccines is causing a decline in immunization rates, leading some regions to become vulnerable to disease outbreaks once thought to be eradicated.[10] For example, in 2019, the United States recorded the most measles cases since 1992.[11] To avoid widespread resurrection of these diseases, states legislatures are taking action to increase immunization rates by restricting or removing non-medical vaccination exemptions.[12]

Medical, Religious, and Philosophical Exemptions to Immunization. 

Generally, there are three categories of exemptions that may allow parents to forgo required immunizations: medical, religious, and philosophical. All states allow for medical exemptions, which doctors can grant for things such as allergic reactions, medical history, or current conditions.[13] Stated more technically, the medical exemption applies to “children who are immuno-compromised or have a medical contradiction to the vaccine.”[14] In other words, this exemption applies to children who are more likely to be harmed than benefited by being vaccinated.

Religious exemptions have been adopted by forty-five states.[15] This exemption applies to parents who have sincerely held religious beliefs against vaccinating their children.[16] And finally, philosophical exemptions (also known as personal belief exemptions) have been adopted by only 15 states.[17] This exemption is typically a broader version of the religious exemption and pertains to parents whose opposition to vaccines is based upon beliefs that are beyond spirituality or religion.[18] The philosophical exemption sets a low bar and is essentially available to anyone who requests it – provided they reside in one of the states that has adopted it.[19]

New Limitations on Exemptions to California’s Immunization Law.

After California removed the personal belief exemption in 2015, parents could only pursue a medical exemption for their children. and ever since, the medical exemption has been painted as a legal loophole.[20] As such, the new California law puts stricter regulations on doctors’ ability to authorize exemption.[21] The law provides for stricter oversight over medical exemptions by giving California’s Public Health Department authority to reject granted exemptions that do not meet the new standards.[22] Criteria to be considered include the school’s immunization rates and how many exemptions the doctor has already authorized that year.[23] Under the new law, children who attend schools with an unreported immunization rate or with a rate less than ninety-five percent are subject to additional review.[24] The same additional review applies to children who receive exemptions from doctors who have already authorized five or more exemptions during that year.[25]     

Legal Issues Stemming from the Elimination of Religious and Philosophical Exemptions.

There are various legal issues that arise from laws eliminating religious and philosophical vaccine exemptions. The constitutional validity of these laws can be called into question by the First Amendment, principles of federalism,[26] and the fundamental right of parents to make child rearing choices.[27] And finally, depriving an unvaccinated child the right to public education could violate the Equal Protection Clause of the Fourteenth Amendment.

As early as 1905, the United States Supreme Court upheld the constitutionality of compulsory vaccinations. In Jacobson v. Massachusetts, the Supreme Court held that “[l]iberty secured by the Constitution…does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint” and that “there are manifold restraints to which every person is necessarily subject for the common good.”[28] Given that Jacobson was decided over a century ago, one may wonder if the Supreme Court would make the same decision today.

When fundamental rights, such as the fundamental right to make parenting and child rearing decisions, are suppressed, courts apply strict scrutiny review.[29] For a law to be upheld under strict scrutiny, the law must be narrowly tailored to the realization of a compelling government interest.[30] The “common good” rationale from Jacobson seems to routinely pass strict scrutiny in modern day challenges against vaccine laws.[31] but courts have concluded more recently that, “claims of religious freedom must yield to the compelling social interest of combatting the spread of disease through mandatory immunization programs.”[32] Still further, courts have held that the “right to practice religion freely does not include liberty to expose the community or the child to communicable diseases or the latter to ill health or death.”[33] Schools are becoming increasingly susceptible to the spread of disease due to declining immunization rates. Vaccines were created to prevent spread of disease and they are very effective in doing so.[34] Compulsory vaccine laws regarding school admissions directly achieves the government’s desired effect of stopping the spread of disease in schools.[35] Therefore, stricter limitations on medical exemptions would likely pass strict scrutiny and be upheld in a federal court today.

In Jacobson, a small penalty fee was imposed on those who did not receive required vaccinations.[36] Those opposing California’s new law might distinguish Jacobson by arguing that the interest of public health cannot so easily outweigh parents’ rights to direct the upbringing of their children.[37] The Supreme Court addressed this notion in Zucht v. King, declaring the Jacobson holding just as applicable to school admissions.[38] It further held in People of State of New York v. Van De Carr that “the conferring of discretionary power upon administrative boards [to act] within the police power of the state is not violative of rights secured by the 14th Amendment.”[39]

Strict scrutiny review and principles of federalism harmonize to firmly uphold compulsory vaccination legislation. To date, no federal appellate court has struck down compulsory vaccination legislation, nor legislation limiting exemptions, in response to a constitutional challenge.[40] And, state courts often cite to Jacobson while deferring to the discretion of local health departments.[41] As a result, it may be quite a feat to change this precedent.     

Footnotes

[1]Alexei Koseff, California Limits Vaccine Medical Exemptions as Protests Disrupt Legislature, San Francisco Chronicle (Sept. 9, 2019).   

[2] 2019 Cal. Legis. Serv. Ch. 278 (S.B 276) (WEST).

[3] Id.

[4] Bethany Mandel, California’s Dangerous Bipartisan Anti-Vaccine Movement, National Review, (Sept. 24, 2019).

[5] Stefan Riedel, Edward Jenner and the History of Small Pox and Vaccination, Baylor University Medical Proceedings (2005).

[6] Azhar Hussain, The Anti-Vaccination Movement: A Regression in Modern Medicine, 10 Cureus 7 (2018).

[7] Id.  

[8] Chepra McKee, Exploring the Reasons Behind Parental Refusal of Vaccines, 21 The Journal of Pediatric Pharmacology and Therapeutics 2, 104-109 (2016). 

[9] Vaccine Safety: Autism, Center for Disease Control and Prevention, (last visited Oct. 21, 2019, https://www.cdc.gov/vaccinesafety/concerns/autism.html).

[10] Lianna Matt, Study Relates Vaccine Refusal to Rise in Measles, Pertussis, Center for Infectious Disease Research and Policy, Mar. 21, 2016.

[11] Measles Cases in 2019, Centers for Disease Control and Prevention, (last visited Oct. 5, 2019, https://www.cdc.gov/measles/cases-outbreaks.html).

[12] States Move to Eliminate Non-Medical Exemptions for Vaccinations, Association of State and Territorial Health Officials, Feb. 21, 2019.

[13] General Best Practice Guidelines for Immunization: Best Practices Guidance of the Advisory Committee on Immunization Practices (ACIP), Centers for Disease Control and Prevention, (last visited Oct. 23, 2019, https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindications.html).

[14] Linda E. LeFever, Religious Exemptions from School Immunization: A Sincere Belief or a Legal Loophole, Penn 18 Stat L. Rev 1 (2006).

[15]State-by-State: Vaccinations Required for Public School Kindergarten, ProCon.org, (last updated Jul. 23, 2019).

[16]States with Religious and Philosophical Exemptions From School Immunization Requirements, National Conference of State Legislatures, Jun. 14, 2019.

[17] State Vaccination Exemptions for Children Entering Public Schools, ProCon.org, (last updated Jul. 26, 2019).

[18] Douglas S. Diekema, Personal Belief Exemptions from School Vaccination Requirements, 35 Annual Review of Public Health 1, 275-292 (2013).

[19] Steven Novella, Personal Belief Exemptions for Vaccines, Science-Based Medicine, Mar. 4, 2015.

[20] Linda E. LeFever, Religious Exemptions from School Immunization: A Sincere Belief or a Legal Loophole, Penn 18 Stat L. Rev 1 (2006).

[21] 2019 Cal. Legis. Serv. Ch. 278 (S.B 276) (WEST).

[22] Melody Gutierrez, California Assembly Advances Crackdown on Vaccine Exemptions, but Governor Wants to Change the Bill, Los Angeles Times (Sept. 3, 2019).

[23] Diana Lambert, New California Vaccine Legislation Gains Governor Newsom’s Approval After Deal Reached, EdSource, Sept. 24, 2019.

[24] Id.

[25] Id.

[26] An Overview of State and Federal Authority to Impose Vaccination Requirements, Congressional Research Service, May 22, 2019.

[27] Wisconsin v. Yoder, 406 U.S. 205 (1972)

[28] Jacobson v. Massachusetts, 197 U.S. 11 (1905).  

[29] 16A Am. Jur. 2d Constitutional Law § 403 (2019).   

[30] 16A Am. Jur. 2d Constitutional Law § 403 (2019).   

[31] See Boone v. Boozman, 217 F. Supp.2d 938 (E.D. Ark. 2002).

[32] Erwin Chemerinsky and Michele Goodwin, Compulsory Vaccination Laws are Constitutional, 110 Northwestern University L. Rev 3, 2016 (citing Workman v. Mingo County Schools, 667 F. Supp. 2d 679 (S.D.W. Va 2009)).

[33] Prince v. Massachusetts, 321 U.S. 158 (1944).  

[34] See Center for Disease Control and Prevention, https://www.cdc.gov/.

[35] Love v. State Department of Education, 240 Cal. Rptr. 3d 861, 868 (Ct. App. 2018).

[36] Jacobson v. Massachusetts 197 U.S. 11, 12 (1905).

[37] Pierce v. Society of the Sisters, 268 U.S. 510, 534 (1925).

[38] Zucht v. King, 260 U.S. 174 (1922). 

[39] People of State of New York v. Van De Carr, 199 U.S. 552, 562 (1905). 

[40] Yancey Roy, Courts: Mandatory Vaccinations Don’t Violate Constitution, Newsday (Apr. 20, 2019).

[41] Phillips v. City of New York, 775 F.3d 538, 542 (2nd Cir. 2015).