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Fact vs. Fiction: Judge Upholds Barring Unvaccinated Children from Public Schools

by Craig Klugman, Ph.D.

Vaccination is one of the great success stories of public health. People who receive vaccinations against disease are far less likely to contract that disease. In 1900, 30.4% of all deaths from infectious disease were to children under the age of 5 and the top three causes of death were pneumonia, tuberculosis and diarrhea-enteritis. By 2010, the only infectious disease in the top ten list was influenza and pneumonia at 9th place. In 2012, 91.4% of adolescents are immunized for measles, mumps & rubella, 92.8% for Hep B, and many others. By the end of the 20th century, only 1.4% of deaths in children under age 5 were from infectious disease.

In 1905, the U.S. Supreme Court upheld mandatory vaccinations in Jacobson v. Massachusetts. Henning Jacobson was a Swedish immigrant who claimed that vaccinations made him ill as a child. Thus, he refused to allow his family to be vaccinated when Cambridge, MA mandated it during a smallpox outbreak. The city levied a $5 (equivalent to about $132 in 2014) fine that he refused to pay. The U.S. Supreme Court ruled against Jacboson, stating that sometimes common welfare takes precedence over individual rights.

In most states, children must demonstrate they have been vaccinated before they can enroll in school. The reason is simple: Infectious diseases spread when people are in close proximity to one another, giving the virus or bacteria a ready pool of people to infect. If this group has a high enough vaccination rate, then the germ cannot find a strong enough foothold in the population to survive. Reaching this level of people inoculated to prevent outbreaks is known as “herd immunity.” For example, with measles, 95% of the population has to be immunized to prevent spread of the disease. When herd immunity is reached, the population is protected, but individuals who are not immunized may still be at risk, though a lesser risk than if herd immunity was not achieved.

In some states, children can be exempted from their immunization requirement if a parent demonstrates a religious objection, and in some places a philosophical objection. Some religions forbid the use of Western medicine. The philosophical objection is often based on beliefs that the immunizations themselves cause health problems such as autism and allergies. I say “beliefs,” because there is no scientific evidence that such a link exists. When parents apply for these exemptions, in some places it is automatically granted and in others a board or group reviews the application first.

Three families in New York sued in response to their children being denied entrance to school for lacking vaccinations. Two of the families in the suit believed that prohibiting their children from attending school unvaccinated violates their Bill of Rights. The third family sued because their religious exemption was denied.

The use of exemptions has increased over the last 10 years. In New York alone, the rate rose from 0.23% in 2000, to 0.45% in 2011. In Ohio, non-medical exemptions extend to 1.4% of children. The highest exemption rate is Alaska at 5.7%. The result is predictable with some diseases dropping below the herd immunity rate. In New York City, 37 private schools had rates of measles immunization below 70%. In 2014, there have been numerous disease outbreaks by preventable infections. For example, in New York City, 25 people contracted measles. In California 3,456 children have contracted whooping cough. In Ohio, 432 students contracted mumps and 357 contracted measles (the latter mostly in unvaccinated Amish children).

When looking at the ethics of proposed public health policies, one framework is to use the principles of solidarity, efficacy, integrity, and dignity. Solidarity asks whether an action has the goal of improving the public’s health—that is decreasing morbidity and mortality. Do exemptions achieve solidarity? Clearly the answer is no. This is a case where parents exercising autonomy on behalf of a child are making decisions that scientifically are likely to harm the child. Plus, it is difficult to know if the child holds the same beliefs and values as the parent or would hold those values if the child had grown up but died from a preventable disease instead. The principle of efficacy asks whether the proposal is likely to work given the science, culture and politics. While exemptions seem like a good compromise between known scientific efficacy and individual autonomy, the reality is that exercising that autonomy to refuse vaccinations imposes a burden not just on the parent, but also the child whose health is put at risk, and the entire community.

Integrity is a notion of community autonomy, that the key stakeholders are involved in the proposal and whether cultural beliefs are honored. The compromise of exemptions seems to be a good one. Communities of belief that reject Western medicine or science have the right to opt out. However, the consequence of that exercise is that their children will not be permitted to be educated in a group, because that unvaccinated child puts the group at risk.

Dignity is the idea that a person’s human rights should be preserved to the extent possible and that in creating proposals, one should choose the least restrictive alternative. The families in this lawsuit all seem to argue that their dignity has been violated. After all, isn’t education a human right? What these families do not realize is that the power to exercise a right is bounded by its impact on others. When your choices have a high likelihood of causing morbidity and mortality to others, then government has an obligation to step in.

In this analysis, I have privileged science over faith or disbelief in medicine and public health. While you have the right to make choices for yourself, you do not have the right to make choices that can harm others (it’s why homicide is not permitted). Science is reproducible and demonstrates what is actually at work in the world, not what we hope or wish or believe might be at work in the world. And when it comes to the health of populations, scientific efficacy ought to be our guide. Not everyone shares the same philosophy, or the same religion, or the same beliefs. When a person’s view of the world contradicts the scientific establishment, that person has a right to live by their belief, but only so far as it does not harm others.

I applaud Judge William F. Kuntz II of Federal District Court in Brooklyn for upholding a notion of public health ethics. Exemptions represent a compromise and that compromise is that you get to put your child’s health at risk of harm from preventable disease, but in exchange your child does not get to participate in places where that choice puts other people at risk. The standard in New York is that a person must show a “genuine and sincere” religious objection. I would set the standard that the person must show a “rational and scientific” objection. Exemptions based on a medical reason would pass this test. The notion of a religious or philosophical vaccine exemption would, in most circumstances, fail such a test.

The New York families are appealing so we may be hearing more about this case in the future. In the meantime, for the health of out families and communities, vaccination should remain the standard to protect the health of the group.

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