The recent outbreak of measles that has been traced back to Disneyland has made the issue of childhood vaccinations, and the various state laws that require vaccinations, a hot topic. Despite the recent furor over Ebola and the fear of it spreading, measles is much more contagious than Ebola and, as a result, a better test case concerning issues of public health and necessity of vaccination. According to the Center for Disease Control (“CDC”), measles is so contagious that if one person has it, 90 percent of the people close to that person who are not immune will also become infected. Not only is measles highly contagious, but the vaccination is both highly effective and cannot be administered to children under the age of twelve months, highlighting the importance of “herd” immunity.
Epidemiologists place a 92 percent community vaccination rate as the threshold to prevent a rapid spread of measles. Yet, a CDC 2013 survey of the states found that 17 states had vaccination rates below 90 percent for 18-35 month old children. Connecticut, with a vaccination rate of 91.4, is below the recommended vaccination rate and well behind its neighboring states of Rhode Island, Massachusetts, New York and New Jersey, which all had vaccination rates over 95 percent.
One of the reasons for these less than desired vaccination rates, despite the fact that every state has laws that require childhood vaccinations, is that most states provide for exemptions from immunization. The most common exemptions are medical, religious, and personal belief. States, including Connecticut, also typically require students to be vaccinated for specific diseases before they can attend public school.
Not surprisingly, the laws that require a student to be immunized before attending public school have been subject to legal challenges. A recent decision of the Second Circuit Court of Appeals addressed and rejected such a challenge. In Philips v. City of New York, the Court of Appeals addressed a constitutional challenge to New York State’s requirement that all children be vaccinated in order to attend public school.
New York’s immunization requirement, which contains medical and religious exemptions, was challenged by the plaintiff families on claims that the law violated the free exercise clause of the First Amendment, the equal protection clause of the Fourteen Amendment, the Ninth Amendment, and substantive due process. They also claimed that a state regulation permitting state officials to temporarily exclude students who are exempted from the vaccination requirement from an outbreak of a vaccine-preventable disease is unconstitutional.
New York’s Public Health law provides that “no principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, in excess of fourteen days” without a certificate of immunization. The law provides two exemptions from the immunization mandate. First, a medical immunization is available if a physician certifies that an immunization may be detrimental to a child’s health. Second, a religious exemption is available for whose parents hold “genuine and sincere religious beliefs which are contrary to the health practices herein required.” (Connecticut’s school immunization law, CGS 10-204a, also provides health and religious exemptions) If either of these exemptions is denied, the State provides multiple layers of review.
Two of the plaintiff families had received religious exemptions, but objected when their children were excluded from school when a fellow student was diagnosed with chicken pox. The other plaintiff family’s application for a religious exemption was denied.
The Court readily dismissed the plaintiff’s claim that New York’s mandatory vaccination requirement violated substantive due process, citing the Supreme Court decision Jacobson v. Commonwealth of Massachusetts (1905), which held that a compulsory small pox vaccination law was within the state’s police power. In rejecting the liberty claim of the plaintiff in Jacobson, the Supreme Court held that the legislature’s decision to guard the public health and safety via a vaccination requirement was within its right to protect the community, and that “it was the duty of the constituted authorities primarily to keep in view the welfare, comfort and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few.”
The Second Circuit also rejected the families’ claim that the temporary exclusion of their children from their school unconstitutionally burdened their free exercise of religion. Referencing a 1944 Supreme Court decision, Prince v. Massachusetts, the court held that “the right to practice religion freely does not include liberty to expose the community or the child to communicable disease….” Furthermore, the court held that the New York law goes beyond what the Constitution requires by allowing a religious exemption for parents, as it could constitutionally require that all children be vaccinated in order to attend school regardless of a parent’s religious objections.
Finally, the Court quickly dismissed the Equal Protection and Ninth Amendment claims of the plaintiffs. As with a recent West Virginia decision, featured in an April post, the courts have been uniform in enforcing the right of states to require that students be vaccinated before being allowed to attend public schools.
Increasing numbers of unvaccinated children attending schools is not a function of families successfully asserting their legal right to object to vaccination requirements, but legislatures providing exemptions to their vaccination requirements. The recent outbreaks of diseases which had largely disappeared from American life, such as measles, appears to have pushed the pendulum in a new direction, as states such as California, are revisiting their vaccination exemption policies.