If you’re a regular reader of this blog or are just generally aware of current issues regarding vaccinations, you know that Governor Jerry Brown of California signed SB 277 into law. The law removes so-called “personal belief exemptions” for vaccinating children before they enter schools.
Personal belief exemptions were used (and frequently abused) by parents in California to exempt their children from vaccinations using religious beliefs (hardly any mainstream religion is opposed to vaccinations) or the “I don’t like vaccines” belief statement. So many California children were not fully vaccinated, especially when they were clustered in certain areas of the state, lead to several outbreaks of measles, whooping cough, and other infectious diseases.
Thus, the California Senate, led by Senator and Dr. Richard Pan, voted for SB 277, which sailed through the California Senate and Assembly, subsequently becoming law. Its sole purpose was to protect the children of California, the country’s most populous and wealthiest state, from ravages of diseases that were once on the verge of extinction.
Despite the overwhelming support from the legislature and citizens of the state, some groups remain steadfastly opposed. One trope being pushed is doubts about the constitutionality of mandatory vaccinations for children.
Even a group of lawyers wrote a letter to the California legislature, “Statement of Lawyers Opposed to California SB 277,” that tries to deny the constitutionality of mandatory vaccinations for children. The letter concludes:
…we strongly urge you to decline the temptation to tamper with California’s legislative scheme that works to achieve public health objectives while protecting the rights of individuals to make conscientious medical decisions regarding their own health.
Please take the responsible course by rejecting SB 277 and avoiding the legal, educational, and health decision-making chaos that would follow from enactment of this legislation.
The letter is signed by over 150 attorneys but appeared to be written by one Robert F. Kennedy, Jr, a famous attorney with a long history of playing “fast and loose” with the science regarding vaccines. Last month, this blog’s good friend, Dorit Rubinstein Reiss, who spends most of her time (as far as I can tell) writing about legal issues with vaccines, replied to Kennedy’s letter with real science, real constitutional law, and real facts.
June 7, 2015
Assembly Health Committee
Dear Chairman Bonita, Dear Members of the Health Committee,
RE: SB 277: Response to “Statements of Lawyers Opposed to California SB 277”
I am a Professor of Law at UC Hastings College of the Law. I am writing this letter in response to the “Statement of Lawyers Opposed to California SB 277”. Contrary to the claims in that letter, SB277 is well within our constitutional bounds, does not violate the right to informed consent, and is supported by solid reasons of public policy.
Constitutional Framework Related to Vaccine Requirements:
Our federal jurisprudence has consistently given legislatures extensive leeway to require vaccination. Our system values individual freedoms and parental rights, but neither is absolute. Individual freedoms can be limited to protect the rights of others, and parental rights can be limited when parental choices harm children. The reason states have such dramatic leeway to require vaccination is that immunizing children is at the intersection of those two interests: because the risks of vaccinating are dramatically smaller than the risks of not vaccinating, and because vaccinating affects not just the child but others, the courts defer to the legislature’s balancing of these interests.
This was most clearly stated in a classic paragraph in the Supreme Court’s decision in Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944), explaining that a parent:
cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.
That view has been upheld by every state and federal court that ruled on the subject, most recently in the 2nd circuit’s decision in Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015). States may compel vaccination – generally, or as a precondition to attending school. No exemption is required.
A much more detailed discussion of this can be found here.
The Need for SB277:
Like several other states, California has been generous in allowing parents to get out of the general legal requirement to vaccinate before sending a child to school. Over the past ten years, exemption rates have risen dramatically. While still low overall, in some schools and areas they are very high. We are now starting to see the consequences. This year and last, we have seen more measles cases than any time since the 1990s. We are also seeing a widespread pertussis epidemic. While the reasons for that go beyond not vaccinating, studies show that communities with lower immunization rates see more outbreaks of pertussis:
Saad B. Omer, et al., Nonmedical Exemptions to School Immunization Requirements: Secular Trends and Association of State Policies With Pertussis Incidence, 296 JAMA 1757(2006).
Saad B. Omer, et al., Geographic Clustering of Nonmedical Exemptions to School Immunization Requirements and Associations With Geographic Clustering of Pertussis, 168 AMERICAN JOURNAL OF EPIDEMIOLOGY 1389(2008).
Aamer Imdad, et al., Religious Exemptions for Immunization and Risk of Pertussis in New York State, 2000–2011, PEDIATRICS (2013). More information can be found here (pdf).
These outbreaks, while still limited, are a wake-up call, warning us that immunization rates are not high enough. The responsible thing for California to do in response to this warning call is to legislate to increase immunization rates. That’s what SB277 does.
Since the legislature has dramatic leeway it could choose among three options:
Allowing the minority that opposes vaccines to continue to deny their children protection from disease, increasing the risk of outbreaks in the community.
Tighten school immunization requirements, close the loophole that allows easy opt-outs, and make our schools safer.
Remove the choice: require parents to vaccinate. That is within the state’s constitutional powers, but it’s a powerful intrusion into parental rights, something our system hesitates to do.
SB277 chooses the middle ground: preserve parental choice, allow parents to continue not to vaccinate but limit their ability to impose the risk they choose for their own children on that child’s classmates, daycare mates, and the rest of the community. It’s a reasonable measure.
It does not violate parents’ rights to informed consent, a private law right that governs the relationship between the parent and their child’s doctor: absent a court order, the doctor may not vaccinate a child without parental consent. A doctor that does can be liable in torts for battery or negligence. A parent can choose to leave the child unvaccinated.
But that choice may have consequences. Just like a parent can choose not to give a child ADHD medication but may be liable if that child, as a result, attacks another, or an adult with epilepsy may choose not to take medication to control seizures but may find herself denied a driver license because of that choice. We respect individual and parental choice; that doesn’t mean giving the one making the choice blanket license to endanger others.
California’s Right to Education:
California’s courts have interpreted Article IX to the constitution as acknowledging a fundamental right to education. Serrano v. Priest, 5 Cal.3d 584 (Cal, 1971). But SB277 does not violate that right. First, the fundamental interest in education was acknowledged in the context of suspect classifications – wealth, race. It was never used to limit the ability of the state to regulate for public health or school safety. A safe and healthy environment is a compelling interest and a precondition to education. In one case, Williams v. State, 1999, Serrano v. Priest was used to attack, among other things, schools that provided unsafe and unhealthy facilities. Williams settled – it never set a precedent, but there is no case in which courts struck down a health or safety regulation in the name of a right to education.
Further, the right to education also covers those who cannot be vaccinated, who can benefit from a medical exemption. Low immunization rates make it impossible for these children to attend schools. The parents who choose not to vaccinate have a choice; the parents of these children do not. Between those two groups, it’s those with no choice that have the stronger claim to a right to access, and SB277 – leaving intact the medical exemption – protects their right to access.
Finally, note that SB277 offers a range of alternative schooling options, both private and public. If parents are so unwilling to protect their child from diseases that they prefer to either homeschool or enroll their child in an independent study, that is their choice, just as if they are unwilling to accept state curriculum they can choose to homeschool. We don’t change the curriculum to protect parents from choosing to homeschool, and we shouldn’t remove a reasonable health and safety requirement – vaccination – because some parents are so unwilling to follow it, they would choose to homeschool or independent study.
As a final point, the opponents to SB277 highlight the existence of the National Vaccine Injury Compensation Program (NVICP) as a reason to reject SB277. That, too, is unfounded. Nothing is without risk; a child can choke when eating, and we still feed children. We have seatbelt laws even though seatbelts come with a small risk. This is just as true of vaccines: vaccines carry a small risk. Very rarely, they can cause serious harm; but not vaccinating is much more likely to do so.
NVICP was created both to protect manufacturers and to provide those that may have been injured by vaccines an easier forum of compensation. Its requirements for showing causation are less demanding than those of the regular courts. In spite of this low standard, the tiny numbers of cases compensated show how rare vaccine injuries are. Between 2006-2013, over 2 billion doses of vaccines were distributed in the United States; in that time, less than 1700 vaccine injury cases were compensated, most through settlement, where no “show of causation” is required. Much less than one per million cases compensated (pdf).
That is less than the number of deaths per year from one preventable disease, influenza, alone.
Saying that this small risk is a reason to allow parents to send unvaccinated children to school and risk others is problematic.
In short, SB277 is a constitutional and reasonable measure to make our schools safer from diseases. I urge you to support it.
Dorit Rubinstein Reiss
Professor of Law , University of California Hastings College of the Law (San Francisco, CA).
Editor’s note – this article was originally published in August 2015 to post a letter from Dorit Rubinstein Reiss in support of California’s SB277 which eventually was signed into law by Governor Jerry Brown. This article has been edited to fix some broken links, updated to fix the formatting, and copy-edited to fix some grammatical and spelling errors.