California Forum

Vaccines protect us. But does the U.S. Constitution protect anti-vaccine parents?

Here’s the scene at contentious vaccine bill hearing at state Senate

A hearing at the state Capitol on SB 276, which would require public health officials to approve exceptions to vaccination requirements, drew a large crowd outside the Senate hearing room on Wednesday, April 24, 2019.
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A hearing at the state Capitol on SB 276, which would require public health officials to approve exceptions to vaccination requirements, drew a large crowd outside the Senate hearing room on Wednesday, April 24, 2019.

There is no constitutional right for parents to refuse to have their children vaccinated. Every court to rule on the issue has held that the government may require that people be vaccinated against communicable diseases, including as a condition for children attending school.

California has a strong law requiring vaccination of children, but the Legislature should close a loophole by passing Senate Bill 276, which would empower the state health department to review medical exemptions sought by physicians.

According to the California Department of Public Health, measles, mumps and rubella (MMR) vaccinations “are more than 97 percent effective in preventing measles.” There was, however, a decrease in vaccinations as more parents declined to vaccinate their children. In California, the rate of kindergarten parents refusing to vaccinate their children under a personal belief exemption doubled from 2007 to 2013. This precipitous drop in vaccinations was largely due to the medically unsupported theory that inoculation could lead to autism among children.

Contrary to the unsubstantiated fears of vaccination, the benefits of measles vaccines are well documented. Within the first 20 years of licensed measles vaccination in the United States, an estimated 52 million cases and 5,200 deaths were prevented.

Opinion

In December 2014, the first reported cases of measles arising – at Disneyland, of all places – were reported.

Measles is a highly communicable respiratory disease. The virus can linger on surfaces for up to two hours. This can be disastrous for an amusement park, school or neighborhood playground.

The virus mostly spread among those who had not been vaccinated, either because they were too young or were not vaccinated by choice. By the end of January, the virus spread beyond the borders of California to infect children and adults in Utah, Colorado, Washington, Oregon and Mexico. Most of the January and December cases in California and beyond were linked to initial exposure at Disneyland.

This was the impetus for California to tighten its vaccination requirement and pass Senate Bill 277 in 2015. It made California the third state in the nation to require compulsory vaccination with no religious or personal belief exemptions. Since SB 277 went into effect, California’s kindergarten vaccination rate has increased from 92.9 percent to 95.1 percent. Public health officials have found that a community needs at least 95 percent of its residents to be immunized to prevent measles from spreading.

It is likely that this increase in vaccination will help spare California the measles outbreak now being seen in New York and other states.

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Erwin Chemerinsky

But there is a loophole in SB 277. A doctor can exempt a child from immunization for medical reasons. In theory, this makes sense because there are a relatively small number of instances where a medical condition can make vaccinations inadvisable. Unfortunately, what has happened is that there are doctors known to be willing to freely grant such exemptions, often for cash. They are doing so in disturbing quantity.

SB 276 seeks to close this loophole. The bill would direct the state’s health department to develop a standard exemption request form, using guidelines from the federal Centers for Disease Control and Prevention about what medical evidence indicates a vaccine that poses a risk to the child.

SB 276 also would have all exemptions currently on file at schools to be sent to the public health agency by July 1, 2020, for possible review. The department would maintain a database of exemptions that would allow officials to monitor which doctors are granting numerous exemptions.

There is precedent for this in other states. West Virginia, for example, has its public health department review all medical exemptions from vaccinations.

The bill was introduced by state Sen. Richard Pan, a Sacramento physician and Democrat. On April 24, it passed the Senate Health Committee by a 6-2 vote. Hopefully, the Senate and the Assembly will approve this bill.

Those who oppose vaccinations try to put their arguments in constitutional terms, claiming a constitutional freedom to refuse to inoculate their children. But that claim has no legal basis. An individual’s liberty never includes the right to harm another. Parents do not have the right, no matter what their belief or religion, to put their children at risk of a communicable disease that is preventable and that sometimes has devastating consequences.

Nor do they have the right to put others in society in danger, such as those who cannot be vaccinated for health reasons or those for who the vaccination fails.

Every child in California should be vaccinated unless there truly is a medical condition that makes it inadvisable. SB 276 is an important step in that direction.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.

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