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Religious Exemptions to the Immunization Statutes: Balancing Public Health and Religious Freedom

Published online by Cambridge University Press:  01 January 2021

Lainie Friedman Ross  and
Timothy J. Aspinwall
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Extract

In February 1997, the Committee on Bioethics of the American Academy of Pediatrics (AAP) updated its position on religious exemptions to medical care. In its earlier statement, the committee noted that forty-four states have religious exemptions to the child abuse and neglect statutes, and they argued for the repeal of these exemptions. The committee did not indude in its statement a position on religious exemptions to childhood immunization requirements that exist in forty-eight states, although this issue was discussed in committee meetings. In its revised statement, the committee concluded that “The AAP does not support the stringent application of medical neglect laws when children do not receive recommended immunizations.” In this paper, we consider whether failure to immunize one's child is a form of medical neglect and, if so, whether states should repeal their religious exemptions to the immunization statutes. We argue that failure to vaccinate a child properly is medical neglect.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 25 , Issue 2-3 , Summer Fall 1997 , pp. 202 - 209
Copyright
Copyright © American Society of Law, Medicine and Ethics 1997

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References

Committee on Bioethics, American Academy of Pediatrics, “Religious Objections to Medical Care,” Pediatrics, 99 (1997): 279–81. This committee statement updates that committee's previous statement in 1987. See Committee on Bioethics, American Academy of Pediatrics, “Religious Exemptions from Child Abuse Statutes,” Pediatrics, 81 (1988): 169–71.Google Scholar
Committee on Bioethics (1988), supra note 1.Google Scholar
Centers for Disease Control and Prevention, State Immunization Requirements, 1994–95 (Washington, D.C.: U.S. Department of Health and Human Services, 1995): At 22.Google Scholar
Personal Communication with Arthur Kohrman, F. M.D., Associate Chair, Child Advocacy, Children's Memorial Hospital, in Chicago, Ill. (Feb. 6, 1996).Google Scholar
Committee on Bioethics (1997), supra note 1, at 279.CrossRefGoogle Scholar
Kempe, C.H. et al., “The Battered Child Syndrome,” JAMA, 181 (1962): 105–12.CrossRefGoogle Scholar
Wissow, L.S., “Child Abuse and Neglect,” N. Engl. J. Med., 332 (1995): 1425–31 (citing National Center on Child Abuse and Neglect, Study Findings: Study of National Incidence and Prevalence of Child Abuse and Neglect (Washington, D.C.: U.S. Department of Health and Human Services, 1988).Google Scholar
See State v. McKoum, 475 N.W.2d 63 (Minn. 1991); Funkhouser v. State, 763 P.2d 695 (Okla. 1988); and Bergmann v. State, 486 N.E.2d 653 (Ind. 1985).Google Scholar
See, for example, Sampson v. Taylor, 278 N.E.2d 918 (N.Y. 1972) and In re Seiferth, 127 N.E.2d 820 (N.Y. 1955), respectively. Lainie Friedman Ross has argued elsewhere that these types of decisions may be medically neglectful but they should not be within the realm of medical neglect deserving state intervention. See Ross, L.F., Health Care Decision Making for Children (1996) unpublished Ph.D. dissertation, Yale University (on file with author).Google Scholar
The Department of Health Education and Welfare established regulations pursuant to the Child Abuse and Prevention Act of 1974. 42 U.S.C.A. § 5101 (West 1997). The regulations require states to permit exemptions for spiritual treatment in order to be eligible for federal matching funds in child abuse and neglect prevention programs. These exemptions were passed in large part because several key aides to President Richard Nixon were Christian Scientists. Child Abuse and Neglect Prevention and Treatment Program, 39 Fed. Reg. 43,937 (1974).Google Scholar
C.H.I.L.D. (Children's Healthcare is a Legal Duty, Inc.) has compiled a list of forty-four court cases involving parental medical neglect of children. Personal Communication with Rita Swan, C.H.I.L.D. (June 3, 1995). It is likely that many instances of medical neglect are not reported to the authorities, and, of those that are, many do not result in litigation.Google Scholar
See Committee on Bioethics (1988), supra note 1, at 169.Google Scholar
See Committee on Bioethics (1997), supra note 1, at 279.Google Scholar
Medical neglect, as used here, is much broader than and distinct from the legal concept of medical neglect, which indicates a breach of a legal duty of care and provides justification for state intervention. Many cases of medical neglect, broadly defined, would not meet the legal standard.Google Scholar
The U.S. Supreme Court has ruled that parents have a constitutionally protected right to make determinations about their child's upbringing without undue state interference. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925); and Meyer v. Nebraska, 262 U.S. 390 (1923). Nevertheless, parental rights are not absolute. For example, parental rights are limited by the state's interest in protecting children from harm or neglect. See Prince v. Massachusetts, 321 U.S. 158 (1944).Google Scholar
Goldstein, Joseph, Freud, Anna, and Solnit, Albert propose this term. See Goldstein, J., Freud, A., and Solnit, A., Before the Best Interests of the Child (New York: Free Press, 1979): At 24–25.Google Scholar
See id. at 9–13.Google Scholar
See id. at 91.Google Scholar
In fact, there may be advantages in being a free-rider: One gets the benefits of herd immunity without exposure to the risk of the vaccine.Google Scholar
Requiring both criteria to hold means that some vaccinations presently mandated by the state are less justifiable than others. For example, the rubella vaccine does not prevent serious illness in individual children but prevents serious problems in fetuses whose mothers catch rubella from infected children. As such, the benefit is not to the particular immunized child per se, but to the community. It is not our intent to discuss the pros and cons of each immunization, but to look at the general practice of state-mandated vaccination laws and the religious exemptions to these statutes.Google Scholar
Jacobson v. Massachusetts, 197 U.S. 11 (1905).CrossRefGoogle Scholar
See id. at 25. The state's authority in Jacobson was extended to include child care and religious freedom by the Supreme Court's ruling in Prince, 321 U.S. 158. In Prince, the Court upheld the criminal conviction of a Jehovah's Witness for permitting her-nine-year-old niece to sell pamphlets in violation of a child safety law. The Court punctuated its ruling with the often quoted statement that “Parents may be free to become martyrs themselves. But it does not follow [that] they are free … to make martyrs of their children….” Id. at 170.Google Scholar
Hutchins, Sonja et al. define an outbreak as five or more epidemiologically linked cases. They reported 815 measles outbreaks in the United States between 1987 and 1990. See Hutchins, S. et al., “Measles Outbreaks in the United States, 1987 Through 1990,” Pediatric Infectious Disease Journal, 15 (1996): At 31–38.Google Scholar
Centers for Disease Control and Prevention, “Reported Vaccine-Preventable Diseases—United States, 1993, and the Childhood Immunization Initiative,” Morbidity and Mortality Weekly Report, 43, no. 4 (1994): At 58.Google Scholar
Vaccination coverage necessary to achieve herd immunity depends on the disease; for example, measles and pertussis, 92 to 95 percent; mumps, 90 to 92 percent; rubella, 85 to 87 percent; and diphtheria and polio, 80 to 85 percent. See Anderson, R. and May, R., “Modern Vaccines,” Lancet, 335 (1990): 641–42.CrossRefGoogle Scholar
In its review of the data, the AAP concluded that no causal relationship exists between DTP (diphtheria, tetanus, and pertussis) vaccination and chronic neurologic disorders. See Committee on Bioethics, American Academy of Pediatrics, “The Relationship Between Pertussis Vaccine and Central Nervous System Sequelae: Continuing Assessment,” Pediatrics, 97 (1996): 279–81. Similar conclusions have been reached by the National Vaccine Advisory Committee. See National Vaccine Advisory Committee, Report of the Ad Hoc Subcommittee on Childhood Vaccines (Washington, D.C.: U.S. Department of Health and Human Services, 1994); and Advisory Committee of Immunization Practices, Centers for Disease Control and Prevention, “Update: Vaccine Side Effects, Adverse Reactions, Contraindications, and Precautions. Recommendations of the Advisory Committee of Immunization Practices,” Morbidity and Mortality Weekly Report, 45, no. 2 (1996): 1–35.Google Scholar
See Centers for Disease Control and Prevention, supra note 3, at 22.Google Scholar
The establishment clause of the First Amendment of the U.S. Constitution prohibits exemption eligibility criteria that privilege one religion over another or that require membership in an established religion. See Levy v. Northport-East Northport Union Free School District, 672 F. Supp. 81 (E.D.N.Y. 1987). Some state courts had previously upheld statutes limiting exemption eligibility to members of an established religion. See, for example, Brown v. Stone, 378 So. 2d 218 (Miss. 1979). But most do not. See, for example, Davis v. State, 451 A.2d 107 (Md. 1982); Maier v. Besser, 341 N.Y.S.2d 411 (1972); and Dalli v. Board of Education, 267 N.E.2d 219 (Mass. 1971).Google Scholar
See Centers for Disease Control and Prevention, supra note 3.Google Scholar
Whether philosophical exemptions are necessary is debatable because religious exemptions include philosophical beliefs that are “sincerely held and ultimately authoritative.” See Welsh v. United States, 398 U.S. 333 (1970); and United States v. Seeger, 380 U.S. 163 (1965). As such, persons with nontraditional nontheistic beliefs may qualify for exemption. Nevertheless, people with nontraditional beliefs may still be at some disadvantage in applying for exemption. See Mason v. General Brown Central School District, 851 F.2d 47 (2d Cir. 1988) (noting that belief in a “natural existence” did not qualify for religious exemption to the vaccination requirement).Google Scholar
If the percentage of parents who sought religious exemptions for their children were significantly greater, the risk-benefit balance of permitting exemptions might change. We do not address what percentage would be too high.Google Scholar
Fine, P., Commentary on “Herd Immunity: Basic Concept and Relevance to Public Health Immunization Practices,” American Journal of Epidemiology, 141, no. 3 (1995): 185; and Fox, J. et al., “Herd Immunity: Basic Concept and Relevance to Public Health Immunization Practices,” American Journal of Epidemiology, 94, no. 3 (1971): 179.Google Scholar
A recent survey shows that approximately 76 percent of U.S. children aged 19 to 35 months have been fully vaccinated. This is the highest rate ever achieved in the United States, but it still falls short of the goal established by the Centers for Disease Control and Prevention (CDC) of 90 percent coverage by 1996. See Centers for Disease Control and Prevention, “National, State, and Urban Area Vaccination Coverage Levels Among Children Aged 19–35 Months—United States, July 1994–June 1995,” Morbidity and Mortality Weekly Report, 45, no. 24 (1996): At 509.Google Scholar
The efficacy rate for vaccinations is as follows: Tetanus and polio, 100 percent; diphtheria, 95 percent; measles, 90 to 98 percent; mumps and rubella, 90 to 97 percent; and pertussis, 70 to 90 percent. See Atkinson, W. et al., eds., Centers for Disease Control and Prevention, Epidemiology and Prevention of Vaccine-Preventable Diseases (Atlanta: U.S. Department of Health and Human Services, 2nd ed., July 1995): At 42, 52, 63, 79, 96, 106, 118.Google Scholar
A sharply divided U.S. Supreme Court just held that the government is free to enact generally applicable laws that burden religious freedom. See Boerne v. Flores, 117 S. Ct. 2157 (1997). However, precedent supports the claim that a generally applicable religiously burdensome law must be narrowly tailored to serve a compelling state interest by the least intrusive means. See Yoder, 406 U.S. 205; and Sherber v. Venter, 374 U.S. 398 (1963).Google Scholar
See Centers for Disease Control and Prevention, supra note 26, at 58.Google Scholar
The federal government is trying to increase the childhood vaccination rate. However, political realities prevent the enabling legislation from being as thorough as originally proposed. See infra notes 47–49 and accompanying text. Individual states are also making efforts to increase the rate of voluntary vaccination. For example, the Georgia Division of Public Health increased the vaccination rate of children served at all state public health clinics from 35 percent in 1987 to 80 percent in 1993. See Centers for Disease Control and Prevention, “Evaluation of Vaccination Strategies in Public Health Clinics—Georgia, 1985–1993,” Morbidity and Mortality Weekly Export, 44, no. 16 (1995): At 323.Google Scholar
See Davis, 451 A.2d 107.CrossRefGoogle Scholar
This would involve appointing a public guardian with the power to consent to a vaccination. For an example of this approach, see Mannis v. State, 398 S.W.2d 206 (Ark. 1966).Google Scholar
The burden on religious freedom created by this option is similar to the burden of a religiously objectionable curriculum: Parents who object to the conditions at public schools may choose to send their children elsewhere. This burden is not excessive. But given the alternatives regarding immunizations, we question whether this represents an optimal balance.Google Scholar
For an excellent article on this topic, see Cole, P., “The Moral Bases for Public Health Intervention,” Epidemiology, 6 (1995): 78–83.Google Scholar
See Centers for Disease Control and Prevention, supra note 3, at 22. Although it is recommended that primary vaccinations be completed within the first two years of life followed by booster shots prior to school entry, it is administratively difficult to ensure compliance until the parents enroll their children in school. As such, parents do not need to seek exemptions until school enrollment.Google Scholar
The Comprehensive Childhood Immunization Act of 1993 was devised to overcome financial barriers to immunizations. 42 U.S.C.A. § 1396s (West 1997). The Act mandates that the federal government provide vaccines to physicians at no cost for children who are enrolled in Medicaid, who are Native Americans, and/or whose parents' insurance does not cover immunizations.Google Scholar
The Immunization Information Systems promoted by CDC are methods of tracking and identifying those children who need to be vaccinated.Google Scholar
There are a number of reasons why the Comprehensive Childhood Immunization Act of 1993 has only been partially successful. First, qualifying primary care providers may charge to cover the cost of administering the vaccine. 42 U.S.C.A. § 1396s(a), (c), (d). Although a participating physician may not refuse to vaccinate a child who cannot pay this fee, financially needy parents may not know this or may be reluctant to ask for a fee waiver. Second, physicians are required to determine whether the child qualifies for the vaccination program, and the physician is required to keep records to verify the child's qualifying status. 42 U.S.C.A. § 1396s(c)(2)(A)–(C). The bureaucratic requirements may deter physicians from participating in the program. The result is that many qualifying children may be unable to get these vaccines except in public clinics. For proposals to remove access barriers, see American Academy of Pediatrics, “Implementation of the Immunization Policy (S94-26),” Pediatrics, 96 (1995): 360–61. The Immunization Information Systems also have problems. Opponents have serious ethical concerns related to privacy and confidentiality of the records. See, for example, Gostin, L.O. and Lazzarini, Z., “Childhood Immunization Registries: A National Review of Public Health Information Systems and the Protection of Privacy,” JAMA, 274 (1995): 1793, 1794.Google Scholar
The AAP's Committee on Bioethics also supports “mandatory mass vaccinations in epidemic situations.” See Committee on Bioethics (1997), supra note 1, at 280.Google Scholar
We do not address whether the state has the moral right to act paternalistically toward adults. Some ethicists, however, question the state's right to mandate any public health measures for children or adults. See, for example, Veatch, R.M., “The Ethics of Promoting Herd Immunity,” Family and Community Health, 10, no. 1 (1987): 44–53. In this paper, Robert Veatch questions state-mandated universal immunizations because he thinks no one benefits from the promotion of herd immunity.Google Scholar