American Journal of Law & Medicine

Is There a Moral Right to Nonmedical Vaccine Exemption?

A recent measles outbreak in the United States was linked to a single source, yet it spanned eighteen jurisdictions and infected 121 people. (1) Forty-seven states currently allow legal exemption from vaccination on religious grounds, eighteen of which also allow it on philosophical grounds, (2) Recent research usually accepts a fundamental right to vaccine exemption and primarily seeks ways to protect herd immunity while also respecting that right, for example, by keeping the exemption available yet harder to procure or by imposing torts for infection-related injury. (3) We argue that when herd immunity is at risk, any moral claim to exemption from vaccination on conscientious, philosophical, or religious grounds is overridden.

Our argument rests on an analogy to a series of situations in which a person puts others at risk through philosophically or religiously motivated choices. In these situations, intuitively, there is no claim-right to compromise the safety' of others. Similarly, we propose, there is no claim-right to refuse vaccination, regardless of one's conscience, when refusal is sufficiently likely to seriously affect herd immunity and the safety of others. We also address several counterarguments. The lack of a claim-right to exemption when herd immunity is at risk does not mean, however, that it is always prudent for the state to force vaccination, or even that forcing vaccinations must be legal. Alternatives to forced vaccination may prove wiser and more conducive to high vaccination rates.

  I. INTRODUCTION
 II. BACKGROUND: VACCINES, EXEMPTIONS, DWINDLING HERD
     IMMUNITY, AND THE ETHICAL DEBATE
III. AN ARGUMENT AGAINST CLAIMS TO NONMEDICAL EXEMPTION
 IV. ADDRESSING COUNTER-ARGUMENTS
     A. COGNIZANT/lNCOGNIZANT RISKING
     B. ACTION/OMISSION
     C. RELEVANT EARLIER CHOICE/NO CHOICE
     D. CHOICE BEFORE/AFTER THE RISK HAS BEEN ELEVATED
     E. IMMINENT/DEFERRED DANGER
     F. SUPERFICIAL/PROFOUND INTRUSION
     G. ONESELF/ONE'S CHILD
  V. CONCLUSION

I. INTRODUCTION

On January 7, 2015, a health warning was issued informing the public of nine confirmed cases of measles traced to an infected visitor at Disneyland in California. (4) Eight of the nine individuals had not been vaccinated. (5) By February, the outbreak spanned eighteen jurisdictions and infected 121 people. (6) As a result, on June 30, 2015, California joined Mississippi and West Virginia as the only other states that disallow any nonmedical exemption to the vaccine requirement for school entry. (7) Simultaneously, at least eighteen additional states introduced legislation narrowing or closing paths for personal belief and religious exemptions to vaccination. (8)

Despite previous incidents of vaccine-associated illness and the now- debunked claims linking vaccines to autism, medical and scientific evidence is overwhelmingly in favor of vaccination; in fact, scientific consensus supports removal of nonmedical exemptions as long as the vaccines are safe and effective. (9) But the 2015 high-profile arrest of Megan Everett, a Florida mother who kidnapped her daughter under auspices of conscientious objection to vaccination, confirms the earnestness of the opposition. (10) Thus, we are in the throes of a national debate over proposed and implemented vaccine legislation as anti-vaccine groups lobby for laws protecting nonmedical vaccine exemption and repeal of legislation that blocks nonmedical exemptions. (11)

This Article presents a new argument against the alleged right to nonmedical exemptions from vaccination when herd immunity for a serious disease is sufficiently at risk. Part II provides background on vaccinations, exemptions, dwindling herd immunity, and the related ethical debate, while focusing on the case of measles in the United States. Part II presents our basic argument against claims to exemption when herd immunity for a serious disease is sufficiently at risk. Part IV addresses potential responses to the basic argument, and the final part concludes.

II. BACKGROUND: VACCINES, EXEMPTIONS, DWINDLING HERD IMMUNITY, AND THE ETHICAL DEBATE

Historically, the development of vaccines was driven by the need to reduce the morbidity and mortality associated with transmittable illness. (12) The recent measles outbreak that propelled legislation in California and other states emphasizes this point. Infected individuals are most contagious when their symptoms resemble those of other common respiratory ailments, prior to the more distinctive symptom of rash onset. (13) As a result, infected individuals often unknowingly transmit measles respiratory droplets. (14) The virus causes respiratory illness, rash, diarrhea, and fever, and in severe cases can lead to pneumonia, irreversible brain damage, deafness, and death. (15) The measles vaccine, typically administered in combination with the mumps and rubella vaccine, is about ninety-three percent effective at preventing measles if an individual is exposed to the virus after one dose and about ninety-five percent effective after two doses. (16) Prior to the introduction of a vaccine in 1963, approximately ninety percent of American children were infected with the measles virus by age fifteen. (17) Yet, by 2000, measles was considered eradicated. (18) This was short-lived because between 2001 and 2012, the median number of measles cases reported annually in the United States was sixty, ranging from a low of thirty-seven to a high of 220. (19) Of these, twenty-six were imported cases, ranging from eighteen to eighty cases annually. (20) Between 2001 and 2013, twenty-eight percent of children under the age of five who contracted measles in the United States required hospitalization. (21) Despite this resurgence, the World Health Organization estimated that the measles vaccine prevents two to three million deaths per year globally. (22)

Vaccines are the medical technology credited with the greatest contribution towards reducing childhood mortality and to extending lifespans around the world. (23) An effective vaccination protects the inoculated individual from the illness caused by the targeted pathogen. (24) It also protects unvaccinated individuals through herd immunity, also known as community immunity or herd protection. This form of protection for non-immune individuals occurs when a high proportion of the population is inoculated. (25) Thresholds of inoculation are disease-specific. For example, herd immunity for childhood measles is achieved when eighty-three to ninety-four percent of the population is inoculated. (26) Once the herd immunity threshold is reached, everyone in a community is protected, regardless of vaccine status. (27) Herd immunity is critical for the protection of vulnerable populations because it effectively renders the pathogen non-transmissible, making an infectious disease outbreak highly unlikely and blocking the spread of disease. (28) In the case of measles, vulnerable populations usually include individuals who cannot be vaccinated due to underlying medical illness, individuals who have not been vaccinated for nonmedical reasons, children too young for vaccination, pregnant women, and vaccinated individuals with weakened immune systems. (29) When the threshold inoculation level is not reached in the population, there is no herd immunity, and all of these vulnerable populations are unprotected. (30) The enormous impact of immunization on measles, just one vaccine-preventable illness, illustrates the potentially colossal impact of widespread nonmedical exemptions, which typically apply to all vaccines.

Vaccination status and thresholds must be considered both in the context of the population as a whole and in the context of groups within the population. The risk for disease transmission is especially high when unvaccinated individuals are geographically clustered, thereby elevating the risk to the non-immune in and around the cluster. (31) When there are clusters of non-vaccinated individuals, the threshold in the wider population is irrelevant to protection within the cluster. Spatial analyses have indicated that there is a correlation between areas where individual exemptions exist and outbreaks of vaccine-preventable infectious diseases. (32)

Vaccination promotion policies, including compulsory policies, were motivated by health concerns for vaccination candidates and third parties. Relatively compulsory vaccination policies include physically forcing vaccinations; deceiving so that one undergoes (a particular) vaccination unknowingly; (33) threatening criminal or civil action; (34) denying financial aid; (35) conditioning activities such as attending public schools, serving in the military, and seeking permanent immigrant status (36) on receiving certain immunizations; and substantially increasing the red tape for obtaining exemption from vaccination. (37)

In the United States, all fifty states currently have laws that require certain vaccinations as a condition of attending public school or daycare. (38) In 2015, state legislatures across the country considered legislation to constrict and better manage religious and personal belief exemptions to this condition. (39) The United States Supreme Court, however, has supported the legality of vaccine mandates. More than 100 years ago, its ruling in Jacobson v. Massachusetts upheld the Cambridge, Massachusetts Board of Health's adult smallpox vaccination mandate. (40) Writing for the 7-2 majority, Justice Harlan asserted that individual liberties can be limited by a concern for the common good and deemed state compulsory vaccination laws constitutional if they are "necessary for the public health or the public safety." (41) There have been few challenges in state and federal courts to this constitutional interpretation, (42) and only one other Supreme Court decision specifically addressed vaccination. In Zucht v. King, the Court upheld a city ordinance that required a smallpox vaccination certificate as a precondition to public or private school attendance. (43)

Despite this legal precedent, states have been reluctant to force vaccination without allowing for nonmedical exemptions. Currently, all but three states (Mississippi, West Virginia, and California) allow parents to claim a nonmedical religious exemption; (44) twenty of those states also permit philosophical or conscientious objection. (45) By allowing exemption on nonmedical grounds, states seek to maintain their allegiance to public health while simultaneously protecting First and Fourteenth Amendment rights which, in Hohfeldian terms, are usually understood as claim-rights. (46)

Nonmedical exemptions would have been easy to accept if there were guarantees that only a small portion of the population would opt out of vaccination. Such exemptions are more problematic when loss of herd immunity, and thus harm to vulnerable populations, is likely. (47) Yet the rate of nonmedical vaccination exemptions has increased dramatically over the past ten years. (48) Between the 2005-2006 and the 2010-2011 school years, national rates of nonmedical exemption have not only increased, but they have also increased at an accelerated rate. (49) A 2014 meta-analysis of nonmedical exemption from school mandates determined that there has been roughly a doubling of exemption rates since the 2005-2006 school year in almost every state that permitted nonmedical exemptions. (50)

There is also considerable variability in vaccination rates. In states with relatively easy procedures for obtaining the exemption, nonmedical exemption rates were over two times as high. (51) States with lenient exemption laws were also found to have larger populations of parents vocalizing complaints against vaccines. (52) Thus, states with the greatest risk of outbreaks face greater resistance to exemption restriction. (53) Variability inside states is also substantial and correlates with certain population features. In 2010, personal belief exemption rates in California counties ranged from 0% to 17.4%. (54) A 2015 spatial analysis of personal belief exemptions in California found that schools with high exemption rates are more likely to be charter or religious schools located in suburban areas with high percentages of white students and low percentages of students receiving subsidized lunches. (55) This finding is consistent with other research that reveals that white, high-income parents are more skeptical about vaccines and less likely to adhere to recommended vaccine schedules. (56)

The impact of nonmedical exemptions on rates of infection is significant. In 2000, the government declared that measles had been eliminated in the United States and surveillance confirmed that its elimination was sustained through 2011, while the disease remained endemic worldwide. (57) However, the increase in exemptions has contributed to a resurgence of measles and other infectious diseases. (58) In 2008, in response to the already growing number of measles cases, the Centers for Disease Control and Prevention ("CDC") reported that the increase was not the result of a greater number of imported cases, but that the cases largely occurred among vaccineeligible children whose parents did not have them vaccinated. (59) Research done by Daniel Salmon et al. …

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