Vaccines Mandates Win in Court

Thank you, Howard, for letting me contribute as a guest blogger this month. For the past five years, I have been involved in the vaccine wars.

Vaccines have tremendous benefits. In the United States, vaccines prevent tens of thousands of deaths and millions of hospitalizations each year. Their risks, while real, are very small. And yet, a misguided minority rejects vaccines, and in some communities, their numbers are disturbingly high. One place they made little headway in are courts - as this state example, mirroring the national jurisprudence, demonstrates.

In 2015, after a measles outbreak centered on Disneyland, California, in a contentious, high intensity legal process, passed Senate Bill 277 (SB277), a bill removing the personal belief exemption from California’s immunization law. SB277 became law on June 30, 2015 when Governor Jerry Brown signed it. Since California did not have a separate religious exemption, the effect of the law was to almost completely remove non-medical exemptions to California’s school immunization law. Unsurprisingly, opponents turned to the courts. After losing in three federal district courts and two state superior courts, two groups of plaintiffs appealed. On July 2, 2018, a California Court of Appeal released the first appellate decision upholding the law. This case was brought by eight plaintiffs seeking to send their children to school unvaccinated, represented by a lawyer who was openly anti-vaccine.

There is a large literature showing  that states with easier to get exemptions have lower vaccination rates and that higher rates of exemptions are associated with more outbreaks of preventable diseases. School immunization requirements work: they increase vaccine rates, and they reduce rates of outbreaks, sometimes completely eliminating them (other things that may lead to outbreaks even when vaccine rates are high. For example, we need a better pertussis vaccine. But even there, non-vaccinating increases the risk and makes things worse).

Opponents’ strongest arguments were that the mandate violated California’s constitutional right to education, violated the First Amendment’s freedom of religion guarantee, and impermissibly interfered with parental rights. Even these, as the Court of Appeals – correctly – pointed out, were not convincing.

The Freedom of Religion arguments runs into two related precedents - Employment Division v. Smith, under which generally applicable, neutral on their face laws do not have to provide religious exemptions, and Prince v. Massachusetts, which in a statement that is not part of the ruling but still persuasive found that religious freedoms do not exempt parents from vaccine requirements, because “[t]he 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.”In a line of Federal Circuit courts mandates without religious exemptions were also upheld. There’s a question on how the recent religious freedom decisions by the Supreme Court will affect this jurisprudence, but that deserves a separate discussion (hint: right now, likely not at all, but it may be a warning for future).

Parental rights are not, and never have been, absolute. Even if they extend to the right not to vaccinate a child against a preventable, potentially fatal disease, they likely do not extend to a right to send that child to school unvaccinated and risk others.

I will address the right to education separately, but in short, the appellate court, following a previous federal district court decision, found that the leading case on the right to education in California – Serrano v. Priest– did not apply in this context, since it looked at a combination of the right to education and a suspect classification – wealth – and there was no such classification involved here. Even if strict scrutiny applied, the Court of Appeal said, the mandate would survive, since preventing diseases is a compelling interest and school mandates are the right means to serve it.

To repeat some of the language:

“…compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases. As is noted in the legislative history, studies have found that “when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease,” and community immunity wanes if large numbers of children do not receive required vaccinations.”…. We agree with Whitlow’s conclusion: “The right of education, fundamental as it may be, is no more sacred than any of the other fundamental rights that have readily given way to a State’s interest in protecting the health and safety of its citizens, and particularly, school children[.]”

 

Indeed.

At least in this area, so far, the courts stand solidly behind science and the public health.