Immunization requirements neither discriminate nor segregate

This article was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines (generally, but sometimes moving to other areas of medicine), social policy and the law. Her articles usually unwind the complexities of legal issues with vaccinations and legal policies, such as mandatory vaccination and exemptions, with facts and citations. 

Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

Anti-vaccine activists have been claiming that statutes abolishing exemptions from school immunization requirements – like SB277 in California – are discriminatory. This post explains why this claim is wrong in both its form: school immunization requirements without exemptions are neither discrimination nor segregation.

Requiring vaccination before a child can attend school is not discrimination:

School immunization requirements – with or without exemptions – certainly treat families whose children do not get the required vaccines (or, when applicable, show immunity in other ways) differently than others. It’s a distinction. That doesn’t make it discrimination.

Most, if not all laws, draw distinctions. Government benefits programs distinguish between qualified applicants who meet the requirements and those that do not. Criminal law distinguishes between those who fulfill the elements of a crime and those that do not, and impose sanctions on the former, but not the latter.

Laws draw lines. That’s what most of them do. And not every line drawing is discrimination.

Discrimination is drawing arbitrary lines. Treating cases that are similar on the relevant points differently. For example, race is not a relevant to someone’s ability to vote, and using that classification serves no legitimate interest. Or for many other activities.

There are several classifications the state offers special protection to – often because of historical experiences demonstrating animus and  unfounded prejudice against these groups. Some categories to consider are race, alienage, religion, gender, and sexual orientation.

But a group whose sole unifying feature is a choice to engage in behavior that can impose risk on others has never been acknowledged as a protected category. And that is what the group of non-vaccinating parents are. That’s because the risk behavior poses to others is very often a relevant characteristic. Though there may be disagreements on the proper role of government v. market, and of the federal government v. states, the potential of government having a role in regulating risk is not in debate.

Unvaccinated individuals are at higher risk of diseases themselves, and if there are high numbers of them, the community is at higher risk of outbreaks (pdf). Preventing the risk of disease is a traditional role of government. The power to quarantine the sick was used by governments for centuries.

Schools have children close together, vulnerable to outbreaks, and protecting them from outbreaks is important. Since school immunization requirements were adopted by various states and locales, courts have upheld them consistently. An extensive analysis of that jurisprudence is beyond the scope of this article, but it’s clear that the state has extensive power to require immunization before school.

Those requirements are based on real risk that is the result of a choice. One that goes against expert opinion, and that can harm others. Not on an arbitrary attribute.

In short, treating non-vaccinating parents differently from parents who vaccinate on schedule is a distinction based on well supported risk creating behavior.  It’s not discrimination.

Just as a state is not required to give a medical license to someone who did not go to medical school without that being discrimination, and a state may fine those who jaywalk but not those who don’t without that being discrimination, a state may refuse entry to its schools to children not vaccinated against diseases health experts deem dangerous – and it’s not discrimination.

Requiring vaccination before a child can attend school is not segregation:

This statement is even easier to refute. Separation is not segregation.  The state has power to separate out people who pose real risks: the state’s power to quarantine is not really in debate, nor is its power to incarcerate certain individuals.

Segregation was unlawful because it separated people, again, based on fear and animus. That’s not what school immunization requirements are intended to do, nor what they do. In an ideal situation, the result of school immunization requirements is that all children medically able to would be vaccinated AND attend the school of their parents’ choice. There is no intent to keep some children unvaccinated and the goal is to make schools safe for all that attend them, not to keep a category of children out.

Children with medical reasons not to vaccinate should, under this system, remain unvaccinated and rely on others being vaccinated. Those without such reasons may still be left unvaccinated because of parental choice.

But before allowing the child into school, the state requires compliance with school requirements, including vaccinating.  If a state allows homeschooling, then the non-vaccinating parents can choose that option. If that is a legitimate choice, it’s a legitimate choice, and the parent can choose it for any number of reasons. It’s not segregation to respect the parent’s choice to homeschool rather than vaccinate.

Claiming that removing exemptions is discrimination and segregation is incorrect.

Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

15 Replies to “Immunization requirements neither discriminate nor segregate”

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  2. The tortured logic of a Big Pharma shill. SB 277 is pure discrimination and will unnecessarily wreck people’s lives. NO on SB 277!

      1. You have to buy into the wobbly theory that non- or selectively- vaccinated children “can impose a risk on others,” which is a manipulative lie. SB 277 amounts to excluding children based upon a biological status, not unlike skin color or HIV infection status. How is that not discrimination? A student with HepB can go to school but not a student without the HepB shot? Absurd!

        1. A. A parent’s choice not to vaccinate is not “biological status” – it’s a behavioral choice. And the comparison to skin color or a disability the family did not choose is inappropriate. And by the way, a child with HIV is a lot less likely to transmit it to others in the school setting than a child with measles – as is a child with known Hepatitis B (and an unvaccinated child is much more likely to have unknown Hep B).

          B. There is extensive evidence that unvaccinated children are more likely to get and transmit a disease, and that low vaccination rates lead to more outbreak. It’s a very well documented risk. http://www.immunize.org/catg.d/p2069.pdf

          1. So if a child with HepB is “a lot less likely to transmit it to others in the school setting,” why require the shot to go to school? You make no sense, and neither does SB 277. The bill is simply an arbitrary attack on parents who make nuanced vaccine choices for their children.
            There is also extensive evidence that vaccinated children get and transmit disease they’re supposedly protected from, e.g. http://fox13now.com/2015/03/27/19-kids-in-summit-co-diagnosed-with-whooping-cough-despite-being-up-to-date-on-vaccinations/

            1. To remind you, the bill covers both schools and daycare. Hepatitis B is more dangerous in the daycare setting. And again: known Hepatitis B is less dangerous than the latent version that an unvaccinated child is much more at risk of.

              And no, the bill is not an attack. It’s aims to protect others from the risks that non-vaccinating parents choose for their own children, to limit those risks from impacting others.

              No vaccine is 100% effective – but as the many studies above show, including for pertussis, low vaccination rates increase the risk dramatically, and unvaccinated children are many times more at risk.

            2. You keep saying “non-vaccinating” and “unvaccinated,” but SB 277 affects parents who may have given their 6-year-old child as many as 38 of the 39 required shots. Do you really think they should be counted as “unvaccinated”? Do you really think they should be kicked out of school?

              “Known Hepatitis B is less dangerous than the latent version that an unvaccinated child is much more at risk of.” That comes right out of thin air! So, how does it work that asymptomatic unvaccinated children are somehow carriers of diseases that don’t manifest? That is pure, ugly discrimination!

            3. I have looked at the breakdown of vaccines on the California Health Department’s site. In schools with high PBEs, children are missing most of the major vaccines.

              But if a child didn’t get MMR – the child increases the risk of measles even if she had all the other vaccines.

              Hepatitis B can be asymptomatic for a long time. Fact.

      2. Well, it is flat out discrimination if you exclude a child from school if they are so excluded for not having been vaccinated against a VPD such as Tetanus, which under no circumstance is ever transmitted from human to human and the choice of the parents is made due a religious belief. While such is not my own religious belief, I will always stand in defense of another citizens right to make such choices especially when it is such a choice presents no threat to anyone else, which is the case with Tetanus….The law is simply fatally flawed in it’s justification by way of just that one example alone.

          1. ‘Some’ vaccine products against tetanus also protect from diphtheria and pertussis. This has become a preferred product as it is we lose more and more choice. Neither of the other two antigens need to be present for the tetanus antigen to have its desired effect.

            1. Sure; point was, tetanus vaccination should not be a school entry requirement, but dropping it would not change the required vaccines.

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