College of Law > About > Centers & Institutes > Mary and Michael Jaharis Health Law Institute > E-Pulse Newsletter > Vaccinations: Further Government Regulation or the Individual’s Right to Choose?
By By Sydney Mayer /
April 28, 2015 /
Posted in: HLI News /
As the Measles outbreak, originating from the California amusement park continues to be widely reported and criticized, the issue of whether vaccinations should be mandatory via government regulations has come to the forefront of discussion amongst the general public and the federal government.  According to the Center for Disease Control (“CDC”), the California Measles outbreak caused 159 people in 18 states, including the District of Columbia, to contract the preventable disease.  Most of those cases, about 74% or 117 of the cases, are the result of the California case.  In the months following the initial outbreak, there has been serious debate about whether there should be a nationwide vaccination mandate in order to combat the recent outbreaks before the problem gets out of hand. With this debate comes vehement outcries against state governments attempting to step into a parent’s role and compel parents to vaccinate their children, whether they want to or not.
Each individual state holds the sole power to enforce mandatory vaccinations and to determine what exemptions are available to their residents.  The U.S. Constitution prohibits the federal government from infringing upon a state’s police power. In Jacobson v. Massachusetts, the U.S. Supreme Court held that, “[A] health regulation requiring smallpox vaccination was a reasonable exercise of the State’s police power that did not violate the liberty rights of individuals under the Fourteenth Amendment to the U.S. Constitution.”  Therefore, states, in the name of public health and safety, have the ability to mandate vaccinations under the Fourteenth Amendment. As a result, states also have the power to permit exemptions to parents who have a belief contrary to vaccinations.
Parents have a number of different reasons for choosing not to vaccinate their children. In most states, with the exception of Mississippi and West Virginia, parents can obtain a religious exemption.  Parents who do not fall into this category, but still choose not to vaccinate often do so out of fear for their child’s safety and health. Actress and co-host of “The View,” Jenny McCarthy, caused a media sensation in the mid-2000s with her anti-vaccination stance.  McCarthy relied on a now-debunked study by Dr. Andrew Wakefield published in the British medical journal, the Lancet, to establish that the Measles, Mumps, and Rubella vaccination caused her son’s Autism.  Dr. Wakefield has since had his medical license revoked, and the Lancet has retracted the article for its use of falsified data. 
Beyond the individuals who fall under the “Jenny McCarthy effect,” parents fear vaccination injury either because of personal experience or the potential for negative side effects that naturally come with any medication.  While negative side effects are always a possibility, the CDC assures parents that the side effects are almost always mild and subside within a few days. 
Parents who have such beliefs, whether based on fear of their child’s potential negative reaction or as a result of Jenny McCarthy’s crusade against vaccinations, could qualify for a philosophical exemption.  Fifteen states have a philosophical exemption available to their residents.  Such an exemption requires a parent to go through an special approval process. For example, in Oregon, parents who want to claim a philosophical exemption must receive education from their health care provider or state-provided videos on the benefits of vaccination.  In California, an individual must file a letter or affidavit stating that the vaccination is contrary to his or her beliefs along with a form from the State Department of Public Health that he or she has been fully warned and educated on the benefits of vaccinations. 
As stated, in recent years, more parents have been opting out of vaccinating their children. In California, there are more than 17,000 philosophical exemptions.  As a result of this choice, a growing number of pediatricians have been “firing” their patients due to fears of spreading preventable diseases amongst their patients, especially to infants that are too young to vaccinate or to children who have medical reasons that preclude vaccination.  It is within the physician’s power to deny unvaccinated patients at their practice, but parents have been outspoken in their condemnation of the act. With more parents not vaccinating their children, and the recent influx of cases of preventable diseases like Measles and Whooping Cough, many people question whether or not parents should be given the choice at all, and whether the government should further regulate.
On the one hand, a parent who chooses not to vaccinate his or her children poses a serious risk to society. The purpose of vaccinating is to increase herd immunity, meaning that, while a disease still poses a risk to public health, individuals rely upon the immunity of others to reduce the likelihood of outbreaks.  With the anti-vaccination movement growing and more unvaccinated children going out into the world, the herd is threatened.  The unvaccinated also drive up costs; for example, after a San Diego Measles outbreak in 2008, the public sector paid $10,376 per case.  Imagine this on a larger scale, as is often the case in countries that do not have access to such vaccines. The harm is not only to public health but to the economy as well.
Conversely, forcing a parent to vaccinate poses risks to individual autonomy, the right to choose, and the right to rear one’s child in a way that he or she sees fit. Criminalizing parents who do not vaccinate will likely lead to an uproar from the general public, and courts already have a difficult time imposing liability on an individual who fails to act rather than someone who acts recklessly.  Is it right to punish parents or force parents to comply simply because they fear for the health and safety of their child?
For now, no state has done more than impose further requirements to permit an individual to qualify for an exemption. Unless a massive outbreak occurs, state governments will do no more, and individual parental autonomy will continue to be protected.
Sydney Mayer is a current student at DePaul University College of Law in Chicago. Ms. Mayer completed her undergraduate degree at the University of Illinois at Chicago in political science and French. She will complete her law degree and certificate in health law in 2016.
 Alyssa Rosenberg, Vaccine deniers, the criminalization of parenthood and the loss of community, Washington Post (Feb. 3, 2015), available at: http://www.washingtonpost. com/news/act-four/wp/2015/02/03/vaccine-deniers-the-criminalization-of-parenthood-and-the-loss-of-community.
 Measles Cases and Outbreaks, Center for Disease Control and Prevention (Feb. 26, 2015), http://www.cdc.gov/measles/cases-outbreaks.html.
 Kevin M. Malone and Alan R. Hinman, Vaccination Mandates: The Public Health Imperative and Individual Rights, Center for Disease Control and Prevention, available at: http://www.cdc.gov/vaccines/imz-managers/guides pubs/downloads/vacc_mandates _chptr13.pdf.
 Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905).
Miriam Krule, Why Is There a Religious Exemption for Vaccinations?, Slate (Feb. 5, 2015), available at: http://www.slate.com/articles/health_and_science/medical_examiner/ 2015/02/religious_exemption_for_vaccines_christian_scientists_catholics_and_dutch.html.
 Rich Lowry, Jenny McCarthy’s dangerous anti-vaccine crusade, NY Post(March 18, 2014), available at: http://nypost.com/2014/03/18/anti-vaccine-activist-jenny-mccarthy-mother-of-plagues/.
SP Calandrillo, Vanishing vaccinations: why are so many Americans opting out of vaccinating their children?, 37 UNIV. MICH. J. LAW REFORM 353 (2004), available at: http://www.ncbi.nlm.nih.gov/pubmed/15568260
 Vaccine Side Effects/Risks, Center for Disease Control and Prevention (Mar. 8, 2012), available at: http://www.cdc.gov/vaccines/parents/vaccine-decision/side-effects.html
 Jed Lipinski, Endangering the Herd, Slate (Aug. 13, 2013), available at: http://www.slate.com/articles/news_and_politics/jurisprudence/2013/08/anti_vaxxers_why_parents_who_don_t_vaccinate_their_kids_should_be_sued_or.html.
 Supra, note 6; including, California, Colorado, Idaho, Louisiana, Maine, Michigan, Minnesota, New Mexico, North Dakota, Ohio, Oklahoma, Utah, Vermont, Washington, and Wisconsin.
 Cal. Health & Saf. Code § 120365 (2012).
 Josh Levs, The Unvaccinated, by Numbers, CNN (Feb. 4, 2015),
 Brenda Goodman, MA, Should Vaccines be a Personal Choice?, WebMD Health News (Jan. 29, 2015), http://www.webmd.com/children/vaccines/news/20150129/ vaccination-choice-measles.
 Supra, note 12.