Compulsory Vaccinations: I Want My MMR

By Michael GrossmanAugust 17, 2016Reading Time: 14 minutes

On July 1, California's state bill No. 277 went into action. This legislation effectively bans the admission of unvaccinated children to public schools for grades K-12. Children who have not been given the standard shots to help prevent serious diseases will not be allowed to attend school with their vaccinated peers.

Laws like SB 277 have been on the books since the mid-19th century. Even then, they were protested by citizens who opposed vaccinations; the modern sound-bite-friendly term for these people is "anti-vaxxers." They believe that immunization is largely a concerted and insidious attempt by doctors to administer unnecessary and dangerous shots for the purpose of swindling the public. It is often added that the vaccines themselves cause serious adverse conditions in their recipients, and that it is unconstitutional to demand that they receive the shots.

So here we have concerned parents and individuals who resist scientific and medical evidence on the grounds that it's all just a harmful commercial shill and a government imposition. In response, the state of California has told them that their objections are largely irrelevant to this matter of public health.

From a legal perspective, can the government override parents' rights to choose how to protect their children's well-being?

The Importance of Vaccinations

There's a lot of resources to tell you more about the history of immunizations if the specific timeline is of interest to you. I'm just going to point out their importance.

We rub elbows with two dozen people a day at minimum. Standing in line at Starbucks and grocery stores, going to the movies, talking to our peers at work, using public restrooms, sitting in break rooms or restaurants...it's people galore.

Consider how paranoid we are about getting germs from surfaces in public places. Purell stations are everywhere you look, and for good reason--who likes getting sick? Imagine, though, if instead of a simple cold bug, you had to fear dangerous, hugely contagious diseases lurking on those door handles.

For school-age kids, the risk and damage increases significantly. They spend eight(ish) hours a day in close proximity to a small army of other children in classrooms, lunchrooms, and recess. If they contract one of these serious illnesses, they can wreak havoc upon one another since no one has a fully-developed immune system.

Nations of the first world haven't been seriously affected by many diseases for some years. A large number can be knocked out early thanks to immunization by vaccination. We get a shot of a weak virus, we build antibodies, and those antibodies remain to fight any stronger strains that come knocking.

That's not to say the diseases are entirely wiped out, but we're pretty close. Because of vaccines, several deadly diseases are curable, and some of them are virtually eliminated. This includes chicken pox, diphtheria, rabies, invasive H. flu, malaria, pneumococcal disease, whooping cough, polio, tetanus, typhoid fever, yellow fever, and smallpox.

It is through our collective agreement to get these shots that the diseases have transitioned from imminent and fatal threats to mere shadows of their former terror. Science found a way to hot-wire the human body into preparing for these pandemics and saved hundreds of millions of lives in the process. These astounding medical breakthroughs help safeguard public health.

More vaccinations grant the additional benefit of what's called "herd immunity." The more people in a close community who have been inoculated against disease, the less likely it will be able to communicate itself between one person and another through transmission.

This helpful graphic from the U.S. Department of Health and Human Services depicts the general idea of herd mentality. Disease needs non-immune bodies to bounce between in order infect a populace, so the more walls it runs into, the less of a hold it can gain. By getting these shots, we help safeguard the well-being of the people around us by lessening the likelihood of being a disease carrier. It's another positive aspect of participating in the program.

And yet, some would say that all is not well in the field of wellness.

Anti-Vax: Vaccination Protestation

Opponents to scheduled vaccinations are resistant to the notion that the government should have the power to strong-arm them into doing anything. Moreover, they believe the whole truth behind vaccines has not been disclosed to the public, and are extremely wary of the health care system.

Here's a few of their objections:

  • Anti-vaxxers are not alone in mistrusting the motives of health care providers due to their historical association with "big business." The makers of drugs and vaccines reap hundreds of millions of dollars in annual profits, and privatized health care is seen as complicit in the grift. It's no surprise that people say "Big Pharma" like they're about to spit. It does not help that health care providers seem so willing to drop insufficiently-tested pills on every malady, and grossly overcharge for even the humblest of services.
  • The public knows that some medical history is written in blood, with a long trail of unethical behavior both in research and general practice. Well-known examples of this include the Tuskegee Syphilis Experiments and the data gleaned from the work of Axis scientists during World War II (while less publicized than the German atrocities, the Japanese also conducted a number of horrific experiments in a classified facility dubbed Unit 731). Many find it difficult to trust a system that involved inhumane tests conducted on unwilling subjects.
  • The federal government itself seems to have at least partially acknowledged vaccines' potential for harm. The U.S. Department of Health and Human Services set up the National Vaccine Injury Compensation Program (NVICP) in 1988 to compensate people and families injured by childhood vaccines. While the government still endorses immunization, the program is a tacit admission that serious side effects are possible in a small percent of recipients. Anti-vax sees it as an ethical breach that the government insists its citizenry roll those dice.
  • A common argument floating through the debate is vaccines' link to autism in children. This derives from a medical study published by (former) Dr. Andrew Wakefield et al in 1998. The study has been rigorously debunked since its publication, and Dr. Wakefield's medical license was revoked. Dr. Wakefield's study also has the dubious distinction of being one of the few published studies The Lancet, the United Kingdom's premier medical journal, has ever disavowed. In 2015, the advocacy group Autism Speaks acknowledged the lack of correlation:

    "Over the last two decades, extensive research has asked whether there is any link between childhood vaccinations and autism. The results of this research are clear: Vaccines do not cause autism. We urge that all children be fully vaccinated."

    Despite this overwhelming evidence, fear still lingers among parents that their children could develop the condition after being inoculated.

  • Many anti-vaxxers argue that vaccination violates their religious beliefs, which are protected by the First Amendment.
    People who take this position seem generally to be conflating "religious preference" with their own personal wishes, as most major world religions don't appear to have official objections to vaccines.

     

  • In a nation preoccupied with individualism, modern medicine grows ever more patient-centric. Greater patient agency during medical consultation leads those receiving care to mistake their louder voices for parity of knowledge in decision-making. This can be frustrating for doctors, to say the least.
  • Some anti-vaccination movements are less concerned about the medical side than they are about the power dynamic between citizens and the government. They do not accept the idea that states have police powers to maintain public health and other elements of the greater good at the expense of a citizen's own autonomy.

While their objections have various degrees of merit, anti-vaccination advocates seem mostly motivated by an interest in protecting their individualism and the Constitutional guarantees thereof. Rallying behind notions of exploitation and patient autonomy, the movement contends that "human beings existed without vaccines for millennia" and can do without them moving forward.

That will no doubt come as great comfort to the tens of thousands who died of measles, rubella, tetanus, and diphtheria in the 20th century alone.

Government Involvement with Vaccines

Federal and state governments have taken a hand in vaccination, especially for children, since the discovery and implementation of the smallpox vaccine in the early 19th century. In 1855, Massachusetts became the first state to require the inoculation of schoolchildren.

In the intervening years, some vaccine laws have relaxed while others remain in effect. Several federal agencies and organizations were also established to oversee and regulate vaccine use in this period.

To this day, federal and state governments overwhelmingly endorse vaccinating babies and schoolchildren. It is their belief, and the foundation of their laws on the matter, that this process helps maintain public health and safety by curbing the spread of disease before it has a chance to flourish. As noted before, they try to accommodate instances where that proves damaging to the recipients of a vaccine, but do not excuse the majority of the population from getting it.

The Clash between Civil Rights and Public Duty

The idea that the government does not have the power to mandate public health actions is not actually new, despite resurgent attention to it in the last decade or so. Given that the nation is founded upon inalienable personal rights, it's not surprising that people have been hitting back against this notion almost since its inception.

The basic argument stems from the idea that mandating an action, which also renders the opposite inaction illegal, violates a citizen's right to due process and equal protection under the Fourteenth Amendment of the Constitution. This contention may have some legal merit; if a party can state they have philsophical or religious objections to receiving a vaccine, ignoring their individual right to their beliefs and rendering illegal their attempt to observe said beliefs could be viewed as unconstitutional.

Despite this argument, the United States Supreme Court has weighed in multiple times on this issue, each time defending the constitutionality of requiring immunization, and furthermore solidifying states' power to mandate that immunization for entry into schools.

One of the first protests of state mandates, Jacobson v Massachusetts, was brought before the Supreme Court in 1905--just fifty short years after Massachusetts became the first state to pass ordinances about vaccines.

After hearing the arguments, Justice John Marshall Harlan delivered the Court's decision:

"The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State."

In so many words, the decision stated that individual freedom must sometimes be secondary to the common good, and is subject to the police power of the state in which the freedom is exercised.

"The highest court of Massachusetts not having held that the compulsory vaccination law of that State establishes the absolute rule that an adult must be vaccinated even if he is not a fit subject at the time or that vaccination would seriously injure his health or cause his death, this court holds that, as to an adult residing in the community, and a fit subject of vaccination, the statute is not invalid as in derogation of any of the rights of such person under the Fourteenth Amendment."

The ruling established that exceptions to a mandatory vaccine ordinance were possible, if receiving the vaccine could result in the death or catastrophic injury of a person whose health was already failing. Pastor Henning Jacobson was not himself found to be exempted in such a manner.

This decision sparked outrage among citizens. The Anti-Vaccination League was created three years later, built on the position that individual rights were indeed getting trampled by the Court's callous decision to stop an epidemic. Applying rhetoric that was ironically tied to the Progressive Movement of the era, League members asked, "We have repudiated religious tyranny; we have rejected political tyranny; shall we now submit to medical tyranny?"

A cartoon making light of Edward Jenner's attempt to administer modified cowpox vaccines to immunize people against smallpox. Note the inoculated humans spawning cows from their bodies to the right.
A period cartoon about Edward Jenner's attempt to administer modified cowpox vaccines to immunize people against smallpox. Note the freshly-inoculated humans growing cows from their bodies to the right, indicating the public's general level of acceptance at the time.

An appealed case from Texas, Zucht v. King, found its way before the Court in 1922, when it upheld its previous decision and reaffirmed state police powers for the purpose of mandatory vaccination. Essentially every state has individual policies to this effect, but often exemptions are allowed for religious or philosophical beliefs, so long as they can be proven sincere.

Any time citizens have challenged these state powers, the Supreme Court has upheld the constitutionality of mandatory vaccines.

Which Position is Right?

In this conflict of citizens and states, the real question is one of Constitutional protection. Individuals seeking to avoid vaccinating their children believe that the absence of presented choices is a violation of their civil liberties--particularly that of due process, guaranteed as a fundamental right in the Fourteenth Amendment. They plead philosophical, medical, or religious reasons that their children should not be inoculated, and they believe the government should accommodate them in the interest of protecting their individual freedom.

Both state and federal governments currently disagree with that. Vaccines are considered an integral part of the public good, and given children's weaker immunities, it is important to bolster their defenses, both for their own health and that of the people who are exposed to them daily. Over a century of judicial precedent has maintained the groundwork of this idea, which is one that has circulated since the states banded together: In order to protect the bulk of personal freedoms, certain liberties must be sacrificed.

It was determined by the courts that protecting society as a whole against dangerous epidemic diseases superseded individuals' rights.

Mandatory vaccination still has loopholes in almost every state. For instance, all states make allowances for medical exemption--situations where a vaccine could potentially kill or gravely injure a child who already suffers health problems.

As of May 2016, 48 states and the District of Columbia also allow people to claim religious exemption from vaccination. Furthermore, 18 states currently accommodate "philosophical exemption," a wish to avoid vaccination for personal or moral concerns. California's SB 277 eliminated philosophical exemption effective July 1 of this year.

Depending on the state, parents who don't want to vaccinate their children still have options. They are vexed, however, that this choice denies them access to the public school system. Hence, parents continue to try and sue their way into these privileges, and the courts continue to deny that they are afforded this right due to the risk it would present to the public.

One example of that revisits the earlier topic of herd immunity. In order for this principle to be effective, approximately 95% of a given population needs to be successfully vaccinated. This level of group immunity serves as an effective shield for the few remaining vulnerable parties, including those exempt for medical reasons (immunocompromised) and those objecting on religious or philosophical grounds.

"Oh," one might say, "well that leaves wiggle room for at least a few non-subscribers to do what they want, and others will pick up the slack, right?"

Yes and no. You can't grant exemption to some who want it without opening the door to all of them, or you are not providing equal treatment under the law, which is unconstitutional. Anyone who takes issue with vaccines would have to be given the opportunity to stroll out the door, even if that group exceeds five percent of the population. That would torpedo the herd immunity strategy. Hence, California legislature exercised its police power and took everybody's exemptions away (except for medical ones). SB 277 was drafted and put into action to address the slumping immunization rates among communities content to thumb their noses at science.

Polls conducted by the California Department of Public Health suggested significant numbers of kindergartners who had not received even the basic MMR vaccine. So when we ask "who's right?", the legal answer is "the government." The constitutionality of the vaccine laws has been upheld repeatedly by the Supreme Court, and if we can't trust the highest court in the land to best interpret the legality of an idea, we're in trouble.

If we're trying to talk about "right" on a moral or philosophical level, I personally still side with the government. I'm not a huge fan of their involvement in private citizens' lives, but I am quite fond of not having polio, and these public health ordinances help protect me from it. I can't tell others how to feel about the rules, though, so your mileage may vary when talking about "who's right" in terms of personal belief.

What Does All This Mean?

It means that public health is protected at the expense of individual rights.

In the U.S., it's not often that the "Greater Good" philosophy finds much traction, because civil liberties are so deeply entrenched as part of an American citizen's heritage.

Nevertheless, given the devastating effects of these diseases, it's in everyone's best interests to keep them from finding a way back into circulation. Since the resurgence of anti-vax sentiments in the early 2000's, cases of diseases we thought almost eradicated have soared. A good example of this is measles--thought to have been erased from the United States in 2000, the CDC confirmed 668 cases across the country in 2014. A heavily-covered outbreak occurred in California's Disneyland theme park in December of that year.

Applications for Personal Injury Liability

If I think a gun is unloaded and I decide to check that by pointing it at a crowd and pulling the trigger, I am absolutely liable for shooting someone. That, friend, is negligence.

Now extend that: I refuse a vaccine and contract a strain of measles, but don't know I'm carrying it around--the signs don't present in me right away. I think the gun's unloaded. What do you suppose will happen when I go to church with a community of people who also refused vaccinations? I shake a few hands, hug a bake sale coordinator, maybe ruffle the hair of the neighbor's kid. Maybe I cough in the pews during a sermon to a packed house.

Measles is communicable four days before the first visible signs manifest; I'm giving that virus every opportunity it needs to make new friends. I'm pulling the trigger in a crowd.

If someone infects other people with a preventable disease--one that could have been stopped by receiving a vaccine--that could be called negligence. Even worse, if that same person prevents their child from getting immunized before trotting him off to school, Junior could infect a whole class of susceptible children.

We don't know of any cases like this just yet, but it can't be ignored as a possibility. To prove it, we'd have to be able to prove the four elements of a negligence claim:

  1. Duty: People are obligated by social contract not to harm one another.
    Duty can be determined by applying what's called the Reasonable Person Standard, which is really just an assessment of exactly what a normal person should do in a given situation. Reasonable people don't wander around hurting each other. A person who refuses vaccines for religious or philosophical reasons still has an unspoken responsibility not to bring harm to those around him or her.

     

  2. Breach: The defendant failed to act in a reasonable manner consistent with their duty to avoid harming others.
    It follows logically that ignoring the statistically and historically helpful nature of vaccines and refusing to get a shot (thereby putting one's own beliefs above the public good) constitutes a willful breach of one's duty to others. If you live with roommates and you leave your front door wide open, you are liable for the damages done to your roommates. Just so, if you leave your body prone to infections and then take those infections around other susceptible people (because we more or less cannot help but be around people every day), you are putting them at risk. You are breaching your duty to practice a reasonable standard of care.

     

  3. Causation: The breach of duty is the direct cause of the plaintiff's damages.
    Let's revisit the church analogy. I'm sick, and even if I don't know it, I set the stage for it to happen by failing to get inoculated and leaving myself vulnerable. I then wander around getting other people sick, because our whole community agrees that we don't want the government telling us our business, so we stuck it to them by opting out of getting ourselves or our kids vaccinated.
    People wouldn't know it by the time the collection plate is passed around, but within the next couple of weeks, they're going to be suffering big-time, and their kids will have it even worse.
    We can double-check causation by applying the But for argument:

     

    But for my refusal to get a vaccine, I would not have exposed members of my community to a serious disease.

  4. Damages: The plaintiff must have suffered demonstrable damages from the injury.
    We can look for damages in a couple of places:

     

    1. General damages. Injured parties were infected with a serious disease, causing physical pain or discomfort, even possible debilitation or death (polio, smallpox). Damages are medically treated and documented, and are highly demonstrable. There would also be issues of mental anguish, pain and suffering, and similar types of mental or emotional trauma to consider--it can't be easy to develop measles at a point in history where that's supposed to be statistically improbable.
    2. Specific damages. Treatment will cost money, and will involve the same merciless privatized hospitals and physicians we were all so keen to avoid in the first place when we refused the vaccines. There will be lost wages and expensive medical bills.

With all four elements of a negligence claim confirmed, it seems likely that as long as the contagious party can be identified, they could be held liable. Would it be worth it, though?

In the case of California anti-vaxxers, the answer may be yes. The outbreak at Disneyland I mentioned has largely been laid on the shoulders of middle- to upper-class families living in wealthy counties. Wealthier, well-educated people in many parts of the country have come to believe themselves "outside" the policies that guide the general populace. In those cases, the defendants are likely well-insured and fiscally solvent, with sufficient assets to consider pursuing a claim.

They're not considered the "typical" anti-vaxxer profile, however. Statistical data suggests that distinction belongs to middle-aged men from the rural Midwest, with low income and little education. They identify as politically liberal but don't care about the environment, they don't go to doctors, and the vast majority of them do not feel like their votes matter in the current political climate.

Regardless of location or ideology, I think it would be best if the anti-vax movement embraced generations of scientific advancement and got their shots. Both these diseases and one's ignorance are preventable.