Steve P. Calandrillo, Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?, 37 U. Mich. J. L. Reform 353 (2004), https://digitalcommons.law.uw.edu/faculty-articles/138
University of Michigan Journal of Law Reform
immunization, National Childhood Vaccine Injury Act, vaccines
Part I of this Article details the historical development and medical achievements made possible by vaccines. From Edward Jenner to Jonas Salk to Albert Sabin, immense strides have been made in eradicating or substantially eliminating some of the worst diseases in human history. Smallpox, polio, measles, mumps, rubella, diphtheria, pertussis, tetanus, influenza, hepatitis A and B, and even the chicken pox are all now largely preventable.
Literally hundreds of millions of deaths have been avoided and many more lives markedly improved, to say nothing of the financial ramifications for the American healthcare system. All fifty states have therefore enacted compulsory childhood vaccination laws to keep immunization rates high. The Supreme Court has reinforced the government's police power to require vaccinations in the name of overall public safety, holding that important individual liberty rights (to opt out from vaccines) do not override other people's rights (to communal health safety). Subsequent cases have confirmed that compulsory vaccination laws do not violate one's constitutional right to Due Process or Equal Protection, or interfere with the practice of religion under the First Amendment.
Part II analyzes the reasons for the growing anti-vaccination sentiment in America. Vaccines have become a victim of their tremendous success—as horrific diseases like smallpox and polio have all but disappeared in America, today's generation no longer fears them as our grandparents did, allowing complacency towards immunization requirements to build.
Vaccines do pose health risks—minor but some serious—that lead parents to have cause for concern. Immunization opponents also raise deeply held beliefs in individualism and freedom from government regulation and medical intervention as justifications for their decision to opt out. The internet fuels this opposition, with dozens of websites spreading information and sometimes misinformation about vaccine safety. Additionally, well-meaning parents may over-perceive the true risks that exist, influenced by widespread media coverage of the highly controversial link between vaccines and autism.
All of these factors combine to spur lawsuits against vaccine manufacturers, producing upward pressure on prices and vaccine shortages as makers leave the market. Congress responded to some of these concerns in the mid-1980s with the National Childhood Vaccine Injury Act, which limited liability of producers and set compensation rates for Americans who are legitimately harmed by the inevitable side effects of vaccines. Still, no action has stemmed the tide of legally sanctioned exemptions to vaccination requirements, or the implications that a parent's decision to opt out presents for her child.
Part III details the repercussions of the rise in exemption rates. "Herd immunity" is threatened as more parents opt out of vaccinating under the rationale that "if everyone else is protected, then so is my child—so why take even the minute risk of any vaccine side effect at all?" Unfortunately, this triggers a classic collective action problem: increasing numbers of free-riders undermine society's ability to achieve a critical mass of people who are vaccinated. The declining community immunity no longer protects members in the group who have not yet been immunized or whose immune systems are more vulnerable due to age or infirmity.
Sadly, as exemptions proliferate, disease "hot spots" are cropping up across the United States where large pockets of children have not received many or any of their mandatory immunizations. The consequences are not merely academic—outbreaks of measles, whooping cough, mumps, rubella and diphtheria are reoccurring, costing hundreds of lives and hospitalizing thousands more. Negative externalities are imposed upon well-intending parents, as their young infants may be exposed to life-threatening illnesses before they even have the ability to complete the recommended childhood immunization schedule.
Others, often in the elderly segment of the population or those afflicted with HIV or cancer, have weakened immune systems that leave them susceptible despite previous vaccinations. Finally, the rise in exemptions imposes substantial financial burdens on the healthcare system in dealing with the outbreaks that do occur.
Part IV takes up the ultimate question of what the law can and should do about this public health issue. Legislators must not sit idly by if exemptions of convenience continue to increase—rather, the exemption process should be a thoughtful one, not a rubber stamp. The Supreme Court has long laid out the principle that government can regulate for the public safety, though those concerns must be balanced with individual freedom and rights. Given the harm that opting out imposes on innocent parties, the exemption process cannot be trivialized into "checking a box." Schools should not be given financial incentives to encourage parents to opt out. Rather, careful deliberation must be given and exemptions awarded only where medically necessary or where parents can demonstrate their informed and sincerely held objections. This is a unique problem that the law can actually do something about in order to balance societal health with individual rights.