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07/01/2015

In California, Vaccination is the Law

by Craig Klugman, Ph.D.

This week, California governor Jerry Brown signed Senate Bill 277. This law mandates vaccinations for all children who attend a school (public or private) in the state. The only exemption is when a physician certifies that a vaccine “is not considered safe for the child.” The big change in this new law is the removal of the “personal belief” exemption from vaccination. No longer can a religious or philosophical belief exempt a child from receiving an immunization.

California has been at ground zero for conversations about vaccination. Earlier this year, the Disneyland park in Anaheim, California was the center of a massive national measles outbreak among unvaccinated children. Several celebrities with ties to that state have also led the campaign against vaccines. The most visible spokesperson is Jenny McCarthy whose child’s autism she blames on vaccines despite the fact that there is no link between the two. McCarthy’s ex-boyfriend, Jim Carrey went onto social media to explain his distrust of government and his position against the new law. This anti-vax movement believes that vaccines are not safe due to the presence of chemicals (specifically mercury compounds) and to a now denounced article that linked autism with vaccines. There is no scientific evidence that vaccines provide a danger to healthy children (unless they have an allergy to a component of the vaccine or have a compromised immune system).

The California legislature and Governor Brown deserve kudos for their efforts to ensure the public’s health by mandating vaccines for all children. Vaccination works by herd immunity—the more people who are immune, the more the population is protected. Because of their health—allergies or being immunocompromised—some children cannot take some vaccines. When other children are vaccinated, those who cannot be are protected. This is because enough of the population is vaccinated that the disease cannot gain a foothold (i.e. “herd immunity”). The problem with philosophical and religious exemptions is that for many diseases, the immunization rate drops below the herd immunity threshold. This puts all people at risk.

This move is a great win for public health and for children’s health.

The anti-vax movement and those skeptical of the government feel otherwise. Besides the discredited concerns about poisoning and autism, opponents of vaccination feel that it should be a parent’s choice (parental autonomy) and not a requirement of a government.

The reality is that there is no scientific or medical disagreement on this topic—vaccines reduce morbidity and mortality. The issue of parental autonomy is an important one. Such a principle, however, is a prima facie one, not absolute nor categorical. A parent’s autonomy ends when a child’s health or well-being is threatened. Thus, as a society we remove children from abusive homes. We require that children receive an education.

What about when a parent’s actions threaten children other than their own? For example, one cannot use corporal punishment on another person’s child, or give an agent to make that child sick, or even take that child across jurisdictional lines (such as state or national) without parental permission. It is not considered permissible to harm another child. So why should we permit parents to make a choice to not vaccinate that poses a direct and known threat to others? Even John Stuart Mill, a libertarian, would permit a law that prevents harm. As he said in On Liberty, ‘The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

In 1905, the U.S. Supreme Court ruled in Jacobson v. Massachusetts that states have a right to enforce mandatory vaccination. As the Court stated, “But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”

The debate over vaccines has connected two topics in the eyes of the law: personal belief and religion. Thus, it has been subject to that anomaly in American life: We do not debate religion. It serves as a trump card. Even the application of parts of the Affordable Care Act stop at a religious institution’s door when it comes to providing contraception. No one dares to question religious belief even when it contradicts scientific fact and lived reality. With the recent Supreme Court ruling on marriage equality, some are speculating whether this longstanding exemption is about to be challenged: It would be violating a court order for a religious college to refuse to recognize the marriage of a gay professor (though depending on the state, the university may be within its legal rights to simply fire that person). This leads to other debates about tax exemption of institutions that claim a religious purpose as well as general discrimination, but it also points to upcoming challenges about the sanctity of religious positions.

This law is a rational step inline with longstanding ethical and legal reasoning. Hopefully it serves as a model for other states.

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