January 29, 2019
Vaccine resistance is one of the top 10 threats to global health in 2019, according to the World Health Organization. Here in the United States, New York City is currently experiencing its worst outbreak of measles in decades, sickening scores of children in ultra-Orthodox Jewish neighborhoods.
Other clustered outbreaks of deadly and highly contagious, but vaccine-preventable, diseases are becoming frustratingly routine around the country. These outbreaks are caused by some parents’ decision to claim religious and philosophical exemptions to state mandates that children must be vaccinated in order to attend school.
In response, prominent health organizations and advocacy groups have called on state legislatures to eliminate religious and philosophical exemptions.
However, in nearly all states, committed anti-vaxxers’ lobbying power would likely make it politically unfeasible to do so. In addition, this approach may ultimately be counterproductive, leading to inflamed passions that unnecessarily politicize and undermine the bipartisan consensus around vaccine policy that is critical to its continued success. Finally, it would be preferable to respect individual liberty and parental rights if the public health goal of maintaining sufficiently widespread immunity can be achieved without unnecessary coercion.
In a collaboration among legal scholars and public health experts, we have developed an alternative approach: a model law that aims to reduce the number of parents who decline to vaccinate their children while respecting freedom of conscience.
Vaccination is one of the greatest public health achievements of the 20th century. It prevents an estimated 42,000 deaths each year in the United States, more than seat belts and child safety seats combined. It is also safe.
Yet vaccination is a victim of its own success. Because parents do not regularly see the devastation of vaccine-preventable diseases, a growing number of them are now more fearful of vaccination than they are of the diseases that vaccines prevent.
Nationally, vaccination rates are very high. But local pockets where large numbers of parents claim exemptions have seen disease outbreaks. For example, in Oregon, more than 250 schools failed to attain the 92 percent vaccination rate required for community immunity. In some schools, as few as 37 percent of students are vaccinated. Consequently, the Portland area is currently experiencing a rapidly growing measles outbreak.
In choosing to opt out of vaccination, parents put their children at risk.
More importantly, they also weaken what public health experts call “community immunity,” the protection that everyone enjoys when a critical mass of people is immunized. Community immunity protects those who cannot be safely vaccinated: for example, because they are too young or not sufficiently healthy.
We propose to “nudge” hesitant parents to vaccinate their children without altogether eliminating the right of parents to opt out based on deeply held religious or philosophical convictions.
In many states, it takes parents more time, effort and cost to vaccinate their children than it does to obtain an exemption. Meeting vaccination requirements can require a laundry list of hurdles: missing work to take children to the doctor; witnessing one’s child in pain from the vaccinations; physically restraining recalcitrant children; transferring the correct form from the physician to the school, sometimes annually and at a cost; and bearing the psychological weight of wondering whether one is doing something dangerous to one’s children.
By contrast, in some states, simply signing a form available online or submitting a personal written statement to school officials once can be enough to obtain an exemption. A study found that states where the paperwork necessary to obtain an exemption was relatively less complex experienced higher exemption rates. This suggests that at least some parents opt for the exemption out of convenience rather than for deeply held convictions against vaccination.
Our proposal changes this calculus by making it as easy as possible to vaccinate and slightly more difficult to get an exemption.
First, to reduce the time burden on parents, states should explore offering vaccination free at school clinics or in partnership with local pharmacies. In addition, there should be a requirement that parents who opt out learn of the risks. This would be accomplished by having them complete annual public health education or counseling on the benefits of vaccination. This could be provided at a pediatrician’s office.
Our model law would also tighten vaccination requirements in other ways. Today, medical exemptions are sometimes given out by chiropractors, holistic healers and physicians specializing in fields unrelated to vaccination, such as dermatology. Our model law would limit those who can grant medical exemptions to licensed medical professionals who work in vaccination-related practices. It would also put in place firm grace periods for compliance, which some states do not currently provide, and require strict enforcement of school exclusion policies to make certain that nonvaccinated children stay home during outbreaks.
Further, this model law would apply to parents of home-schooled children as well, which most states do not currently require. While parents of home-schooled children may think their children are not at risk because they are not as exposed, home-schooled children are active members of the community. They participate in sports, arts, camps and other group activities in which diseases can spread.
We recognize that public health policies should generally employ the least restrictive measures that will accomplish the public health goal. We believe our approach could maintain community immunity and prevent disease outbreaks while respecting the rights of parents to make choices about medical treatment for their children.
Recent studies have shown that making it more difficult to obtain an exemption and making vaccination easier may raise vaccination rates significantly – potentially enough to maintain community immunity – even if committed nonvaccinators still choose not to vaccinate their children.
This proposal offers a way out of the current political stalemate over vaccination mandates. It will save lives and respect individual liberty.
Stacie Kershner, Associate Director, Center for Law, Health & Society, Georgia State University; Daniel Salmon, Associate Professor, School of Public Health, Global Disease Epidemiology and Control, Johns Hopkins University; Hillel Y. Levin, Alex W. Smith Professor of Law & UGA Law in Atlanta Director, University of Georgia, and Timothy D. Lytton, Distinguished University Professor & Professor of Law, Georgia State University