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02/14/2014

LIBERTY AND WHERE NOSES BEGIN–AN OPEN LETTER TO: The ACLU of Rhode Island Concerning Mandating Flu Vaccinations for Very Young Children Entering Daycare and Kindergarden

From: Arthur Caplan and Dorit Reiss

SUBJECT: requiring the vaccination of children and workers in daycare and pre-K against the flu

In recent testimony submitted to the Public Health Department of Rhode Island, a representative of the Rhode Island ACLU spoke against the requirement to vaccinate Rhode Island’s children age six months to 5 years of age against the flu in order to enter daycare or pre-kindergarten. Under the rule, annual influenza vaccination would be mandatory for all children between 6 months and 59 months before entering preschool or day care programs. Even students deemed exempt for medical or religious reasons would be required to stay home during flu outbreaks. You are no doubt right that adding the flu vaccine to the required schedule is an imposition on parents and day care workers. But you are wrong to take the position that the state of Rhode Island ought not require parents to vaccinate or keep their unvaccinated child at home during a flu outbreak.  There are three major reasons why:

  1. Substantial weight must be given to the rights of unvaccinated minor children to be free of disease.
  2. Substantial weight must be given to minimizing the risk of death and hospitalization to others which results from the lack of vaccination in this population.
  3. The burden on the parents is not great and the benefits are likely to prove substantial.

A.  The Rights of the Child

The ACLU is right that the flu vaccine is not as effective as is desirable.  This is because the flu virus is so good at mutating.  But, in your testimony you argued that the vaccine is less than 50% effective.  That is not true for those 6 months to five years. Last year it was 64% effective in children. Of the children that died – and at least 160 did last year– the vast majority were unvaccinated. Over 40% had no prior health conditions. If more children in a class can be vaccinated protection will increase if percentages can reach herd immunity.

Flu kills young children. Flu kills newborns.  Flu kills fetuses in pregnant women. Imperfect as it is, the vaccine offers them the best protection against getting the disease, and against getting the most severe form of it. If parents will not act to help ensure the health of those who rely upon them to do so it is not an undue intrusion upon their liberty for the state to require that they do so.  For example, the same moral rationale underlies requirements governing the use of child car seats (which are far from perfect in preventing injury and death).

No vaccine is risk free, but the evidence is that the risks from the vaccine are very small and very rare (see link below).  The same cannot be said about the documented deleterious effect of the flu on fetuses, newborns and young children.

Your testimony highlighted the danger of egg allergies as a potential risk; but here are the facts about eggs and flu shots: “Although the influenza vaccine is made in eggs and some people are severely allergic to eggs, the quantity of egg proteins in the vaccine is insufficient to cause a severe allergic response. But just to be sure, people with severe egg allergies should remain at their provider’s office for about 30 minutes after receiving the influenza vaccine.” http://www.chop.edu/service/vaccine-education-center/a-look-at-each-vaccine/influenza-vaccine.html

There is also currently a vaccine not cultured in eggs that can be used if the child or family has a history of egg allergies.

Parents have rights, but their rights are not absolute. As the Supreme Court pointed out in Prince v. Massachusetts, 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.” http://www.law.cornell.edu/supremecourt/text/321/158. The regulation Rhode Island proposes is far from draconian.   It will impose pressure on parents to protect their babies and children. But why should the parent’s desire to be free of pressure trump the child’s right to health?

B.   Minimize Risk to Others Especially the Vulnerable

Unvaccinated children are at higher risk of preventable diseases. http://www.immunize.org/catg.d/p2069.pdf. Influenza is highly transmissible. Those children, at higher risk of it, are more likely to transmit it to others. Those others include those too young to be vaccinated, those with health problem that prevent vaccination or leave their immune system vulnerable, and those whom the vaccine fails to protect, http://www.cdc.gov/washington/testimony/2013/t20130213.htm. The elderly, who have a weaker immune response, are especially at risk. The state of Rhode Island should be allowed to regulate to protect the rights of those vulnerable others to be free from disease, hospitalization and death. Liberty must be buffered by the impact of poor choices on the well-being of others.

C.   Burden to Parents?

School and daycare immunization requirements are especially important in the fight for protecting people against preventable diseases for three reasons. First, schools are areas where children are closing together, and more likely to transmit diseases to each other: children are at high risk there. Second, because parents want their children to have early care and schooling, and because parents need to put their children somewhere while they work, school immunizations are effective. And finally, they help insure the availability of care by reducing the burden of illness on the staff who provide it.

School immunization requirements do not mean parents are forced to vaccinate. Rhode Island offers a religious exemption that is extremely easy to get – all parents have to do is sign a “Religious Immunization Exemption Certificate” provided by the school that says that immunization conflicts with the tenets of their religious beliefs. The new regulation asks that they keep their child home during a declared flu outbreak.

You highlight the burden of removing the child during an outbreak, but the reason for that is that unvaccinated children are themselves more vulnerable and put others, including staff at risk. Yes, it is a burden on the parent to keep the child at home; but it would also be a burden on the parent if the unvaccinated child got influenza and required hospitalization. That, you imply, is a choice for the parent to make; but the choice to place the burden of influenza on others by knowingly sending them to school is not a choice that commands respect. It means allowing the parent to externalize the costs of their choice. It means that many more parents may become burdened if a kindergarden must close due to staff illness or if they must stay home with sick children due to a flu outbreak in daycare brought on by sending an unvaccinated child there.  That is unethical.

The ACLU also suggests that having to get a shot every year as opposed to other vaccinations which are given less frequently imposes an undue burden.  To be frank, this argument fails not only in terms of the degree of burden demanded of children but also because it flies in the face of many things that must be done repeatedly and annually in order to maintain health and function.

We believe that the ACLU is factually wrong about the vaccine, the full burden of the flu on third parties and the degree of burden parents and young children are being asked to bear by the proposed daycare/preK mandate.  We hope you will reconsider your initial reaction to the proposed mandate.

Dorit Reiss, Ph.D., J.D.  Professor of Law UC Hastings College of the Law

Arthur Caplan, Ph.D., Director of the Division of Medical Ethics, NYU Langone Medical Center

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