Measles!

First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this.  It’s wonderful to see how what Dan started continues to grow and thrive.

Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.

 As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland.   My focus will be on legal issues, but lets start with an overview.  As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here.  Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home.  This is a very helpful graphic.  In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States.   But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time.   Globally,  400 (mostly) children die of measles every day, 16 die every hour.   Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.  

Also, over the past 5 years, an increasing number of people (mostly college students) have caught  measles and mumps (and both) without the infectot or the infectee leaving their U.S.  college campus.

 The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated.  It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.

 Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old.  There are also counter-indications (more about them later) about who shouldn’t get the vaccine.  Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before.   Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection.  And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.

 

The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state.    Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation.  Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.

To be continued.