Madness—Outbreaks Signal Need for Government Regulation of Immunizations If the Happiest Place on Earth Isn’t Safe…How Important is Freedom of Choice? By: Shalyn Smith

Madness—Outbreaks Signal Need for Government Regulation of Immunizations

If the Happiest Place on Earth Isn’t Safe…How Important is Freedom of Choice?

By: Shalyn Smith

A Rather Cynical Introduction

Alas, a topic that is not too liberal, and not too conservative—Mickey Mouse has the Measles. How could that be in 2015? Just 11 years ago in 2004 there were only 37 cases of the measles reported in the United States.[1] And interestingly enough, this topic (which seems so far from political in nature) has become a legal question in our county. Vaccinations, immunizations, and public health are officially the new controversial topic in America. Ironically enough, this issue rose to the forefront of American cocktail hour conversations after a Measles outbreak occurred in December 2014 at Disneyland in Anaheim California.[2] Since the Disney story hit the headlines about 644 cases of the measles have been reported.[3]

Former Secretary of State Hillary Clinton is tweeting: “The science is clear: The earth is round, the sky is blue, and #vaccineswork. Let’s protect all our kids.”[4] In contrast, possible Republican presidential candidate Chris Christie is singing another tune.[5] Christie, the New Jersey governor, states that “the government should find ‘balance’ on the issue” and that “parents need to have some measure of choice” when it comes to immunizations.[6] Rand Paul is even commenting. Paul, a Kentucky senator and ophthalmologist, said that he believes most vaccines should be voluntary, and that “parents should have some input… [t]he state doesn’t own your children … and it is an issue of freedom and public health.” Paul added that he “heard of many tragic cases of walking, talking normal children who would up with profound mental disorders after vaccines.”

So, in 2015 are vaccinations now a question of civil rights?

The Facts- Vaccination Numbers Across the Country

            In light of all the controversy surrounding vaccinations, it is helpful to recognize the number of children in America who are currently vaccinated. According to the Center for Disease Control (“CDC”), 95% of children in kindergarten have had vaccines for preventable diseases, including two doses of the measles, mumps, and rubella (“MMR”) vaccine.[7] 82% of children in Colorado have had the two-dose MMR vaccine that doctors say is necessary.[8] On the other hand, in Mississippi almost all children in kindergarten (99.7%) are vaccinated.[9] Sadly though, 26 states have not reported meeting a government target of 95% coverage for MMR.[10]

States are not reporting their vaccination rates because each state operating independently has created its own vaccination law.[11] 48 states and the District of Columbia allow religious exemptions from vaccines, and 20 states allow philosophical exemptions.[12] In California, there were 1,000 medical exemptions in the 2013-2014 school year, and more than 17,000 philosophical exemptions. In contrast, Florida had less than 800 medical exemptions and about 4,000 religious exemptions.[13] Florida does not allow philosophical exemptions.[14] Mississippi and West Virginia do not allow religious or philosophical exemptions, and they reported only about 50 medical exemptions combined.[15]

The Issue- Public Safety and Health Concerns

            Variations in vaccination laws lead us to the true “civil rights” issues surrounding the immunization debate. It is a basic principle of law that one person’s private rights end where the rights of another person begins.[16] The most common example of this principle is the enumerated right to free speech, which is given by the First Amendment of the United States Constitution.[17] Even though all citizens have the right to speak freely, one cannot walk into a crowded movie theater and yell “fire” when no such threat exists.[18] Additionally, cyber bullying, and anti terrorism laws infringe on freedom of speech because sometimes, one person’s right can cause harm to others or become an issue of national security. So, when states offer exemptions to immunization requirements, they ultimately infringe on the rights of other citizens to live free and clear of diseases that can cause death.[19]

It may sound outlandish to state that all exemptions are wrong. After all, there are cancer patients and young infants who do not qualify for immunizations. Some religions choose to live without the use of modern medicine. But my question to each of these situations is: “when is enough…enough?” There is a distinct difference between a person who is physically unable to be vaccinated without causing further medical issues, and a person who makes the choice not to be immunized.

For example, let’s consider the fictional story of Susie- a sixth grader in a state that allows exemptions. Susie’s mom is told at the beginning of the school year that many students have nut allergies, so she should not bring foods with nuts to the school. She is also told that Susie must have an updated immunization record before she begins classes. Susie’s classmate Mark is one of the students with nut allergies, and his parents were able to earn a vaccination exemption for him. Is it fair that Susie’s mom must protect Mark by remembering not to pack peanut butter sandwiches, but that Mark’s parents need not worry about the possibility that Mark could contract mutating forms of diseases like the Measles and effect his other classmates? An EpiPen might alleviate any of Mark’s allergy problems, and the school nurse can keep one on hand. However, that same school nurse probably cannot treat the Measles.

The graphic below depicts the Measles outbreak this year in America:

150204132250-01-vaccinations-graphics-super-169

[20]

With the spread of the Measles virus, public health should be one of our federal government’s major concerns.

The Barriers- Personal Autonomy and Freedom of Choice

            Despite these public health and safety concerns, scholars argue that the government should not be able to dictate what decisions parents make for their children. For example Mr. Stephen McKitt states elsewhere in this blog that parents should be able to make decisions for their children.

Mr. McKitt’s view reminds me of a lecture given by UA Law’s esteemed Prof. Ronald Krotoszynski. As one of his first year Constitutional Law students, I remember Prof. Krotoszynski stating: “if parents want to teach their children Klingon instead of English…they can!” Far be it from me to disagree with Professor Krotoszynski, so I admit, Mr. McKitt is correct. Parents have the right to raise their children as they wish.[21]

But, even that right has its limits. For example, parents can face criminal penalties for child abuse[22], they can’t give their children controlled substances[23], and I’m sure Mr. McKitt will agree that parents cannot intoxicate their children with liquor. At some point a parent’s personal view cannot and should not supersede the welfare of a child. And, considering the fact that physical and substance abuse can lead medical issues that parallel with the likelihood of contracting a disease on a family trip to Disneyland, immunizations are not a choice that parents should make for their children unless absolutely necessary.[24]

The Solution- Strict Government Regulation

            At the end of the day, very little can be done on the state level to remedy this issue. It seems unlikely that a state like California that reports thousands of exemptions a year will independently decide to streamline its laws to fit with a state like Mississippi’s laws. And although many of us detest the idea of big government, it might be best for the federal government to regulate immunizations.[25]

Federalism challenges aside[26] however, it is unlikely that the federal government will do so. President Obama’s 2015 budget already includes a $50 million budget cut to the federal immunization program.[27] Since the program’s purpose is to make immunizations more accessible, President Obama felt the budget cut was appropriate considering the ACA expansions that seek to achieve the same goal.[28]

Until Congress decides to consider regulation though, all Americans can do is sit back and ask their states to change exemption policies. I concede Mr. McKitt’s point: a federal regulatory scheme may never happen considering the political dynamic of the Hill at this time. What I will not concede though, is that personal autonomy and “freedom” are the true concerns of this movement.

[1] Frank Bruni, The Vaccine Lunacy: Disneyland, Measles and Madness, The New York Times Sunday Review (Jan. 31, 2015), http://www.nytimes.com/2015/02/01/opinion/sunday/frank-bruni-disneyland-measles-and-madness.html?_r=0.

[2] Id.

[3] Id.

[4] Catalina Camia, Hillary Clinton: The earth is round and vaccines work, USA Today (Feb. 3, 2015, 12:06 P.M.), http://www.usatoday.com/story/news/nation-now/2015/02/03/hillary-clinton-vaccines-work-tweet-christie/22783761/.

[5] Id.

[6] Id.

[7] But that figure is not spread evenly across the country. See Josh Levs, The unvaccinated by the numbers, CNN (Feb. 4, 2015 , 8:05P.M.), http://www.cnn.com/2015/02/03/health/the-unvaccinated/index.html.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] See David G. Owena1, Expectations In Tort,  43 Ariz. St. L.J. 1287, 1287 (2011). Owenal states:

Most elementally, each person possesses an equal abstract right to pursue and protect his or her own interests without undue interference from others. Bearing prominently on intentionally inflicted harms, this right suggests that an actor should not deliberately harm another to advance the actor’s own interests without due consideration of the potential victim’s fair expectations of freedom from harm. For example, one should not deliver an unprovoked punch in the nose merely to show off one’s pugilistic skills, allay one’s anger, or win a bet. Since one person’s abstract autonomy rights are equal to every other person’s similar rights, no person should infringe the autonomy of another without fair consideration of the expected harm to the other’s interests. Simply put, one person may not fairly choose to harm the vested interests of another without consent or justification.31 Harmful conduct thus may be viewed as unjust or wrongful, in equality terms, if the actor chose to cause the harm while knowing that it would violate the victim’s equal right to freedom.

[17] U.S. Const. amend I.

[18] See Rex Armstrong, Free Speech Fundamentalism—Justice Linde’s Lasting Legacy, 70 Or. L. Rev. 855, (1991) (stating: “it is possible to identify expression that almost all would agree should be subject to prosecution, such as falsely shouting “Fire!” in a crowded theater, it is argued that the first amendment cannot be absolute in its protection of expression.”).

[19] Robert Pearl, A Doctor’s Take: Why Measles Vaccination Must Be Mandatory, Forbes (Feb. 5, 2015, 1:00 P.M.), http://www.forbes.com/sites/robertpearl/2015/02/05/measles-vaccination-must-be-mandatory/

[20] Holly Yan, Different State, Different Rules on Vaccinations, CNN (Feb. 4, 2015), http://www.cnn.com/specials/health/measles.

[21] See Troxel v. Granville, 530 U.S. 57, 72-73 (2000) (holding that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made”).

[22] Thomas A. Jacobs, 1 Children & the Law: Rights and Obligations § 2:17 (last updated 2014)

[23] Id. at § 2:20.

[24] Pearl, supra note 19.

[25] Id.

[26] Mr. McKitt cites to the U.S. Supreme Court Decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). There the court held that states have the power to require vaccinations. In 2015, this is not a concern, we all know that state have the power to pass the vaccination laws, and therefore the real question is if the federal government does not have the power to do so. The court did not discuss this issue in Jacobson, and therefore it is a question of law that has yet to be decided.

[27] Devin Dwyer, Why Obama’s Budget Cuts $50 Million From National Vaccine Program, ABC News (Fe. 3, 2015, 11:28A.M.), http://abcnews.go.com/Politics/obamas-budget-cuts-50-million-national-vaccine-program/story?id=28689193.

[28] Id.

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