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.
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