The Anti-Vax Movement: A Legal Perspective

By Musa Kamara (PO’22)

The American anti-vaccination (anti-vax) movement found its roots when British anti-vaccinationist William Tebb visited the United States in 1879. Following Tebb’s visit, anti-vax groups in California, Illinois, and Wisconsin began to form and have continued to develop to this day. In 1998, another British anti-vaccinationist, Andrew Wakefield, published a study that ultimately linked vaccinations to autism. The study has since been widely and soundly debunked, but trends in the 21st century suggest that the effects Wakefield’s ideas are still being felt and will continue to be felt.

Currently, no federal law exists that mandates compulsory vaccinations; however, this does not mean that vaccinations are entirely optional. According to the 1905 Supreme Court case Jacobson v. Massachusetts, vaccines can, in fact, be mandated by state and local laws. Jacobson v. Massachusetts ruled that under the 10th Amendment, it is well within a state’s police power to protect the public health and safety of its citizens; thus, states have the power to make vaccinations compulsory. States most prominently enforce this ability by requiring vaccinations for entrance to public schools, private schools, and daycare. So, for the most part, in order for a child to enter school (which is generally compulsory up to a certain age), students must be up to date on their vaccinations. So how are anti-vaxxers able to not vaccinate their children?

Generally, anti-vaxxers oppose vaccinations and can get exemptions from vaccinations for one of two legally recognized non-medical reasons: religious reasons and philosophical reasons. Religious exemptions can be obtained if vaccination contradicts one’s sincere religious beliefs, and philosophical exemptions essentially cover everything else, including moral convictions and personal beliefs. Those who oppose vaccinations on a religious basis can be exempted from vaccinations in all but three states: California, West Virginia, and Mississippi. So, if an anti-vaxxer opposes vaccination on religious grounds, they can more than likely legally refuse vaccination. However, vaccinations for philosophical reasons are much less widely accepted; currently, only 18 states in the United States allow for philosophical exemptions to vaccinations. Overall, though, a study published in 2018 shows that 12 of the 18 states that allow philosophical exemptions for vaccinations have seen a rise in people claiming such exemptions.

As claims of these exemptions have risen, public health concerns have risen as well: as of March 6th, there have been 206 confirmed cases of measles in 11 states. In late January, Washington Governor Jay Inslee declared a state of emergency in response to Washington’s 36 confirmed cases of measles. This outbreak is particularly troublesome because according to the World Health Organization, “[the] measles vaccination resulted in an 80 percent drop in measles deaths between 2000 and 2017 worldwide.” The Centers for Disease Control (CDC) attributed these measles outbreaks to two factors: an increase in the number of travelers who bring measles into the U.S., and further spread of measles in U.S. communities through pockets of unvaccinated people. Despite the public health concerns and risks such outbreaks present, 2019 has seen lawmakers in 20 states propose bills that would allow for even more non-medical exemptions to vaccines or would require doctors to provide more information on the risks of vaccines.

According to a study published by the CDC last year that recorded vaccine data for kindergartners, vaccine coverage in the United States remains high, most likely due to the fact that vaccinations are a necessity for a child entering school or daycare. Nonetheless, the percentage of kindergartners with exemptions from at least one vaccine increased from 2 percent in 2017 to 2.2 percent in 2018, following an upward trend that is currently in its third year. This increased percentage of unvaccinated children cannot be entirely attributed to the anti-vax movement, as other factors such as disparities in types of insurance—students with private insurance are more likely to be able to afford and receive vaccines than students without insurance, for example—and ineffective communication in regards to booster vaccinations can contribute as well.

On March 5th, the Senate Committee on Health, Education, and Labor held a hearing called “Vaccines Save Lives: What is Driving Preventable Disease Outbreaks?” The event featured testimony from public health experts who suggested solutions to the vaccine issue as well as testimony from a teenager raised in an anti-vax household who took it upon himself to receive vaccinations. The hearing evidences the federal government’s recognition of the emerging public health issue and suggests potential further legislation to combat the issue. Ultimately though, the federal government can only do so much: the majority of the onus of implementing vaccination measures and combating the anti-vax movement falls to the states. That said, the increase in children with vaccine exemptions and the increase in the possibility of in fact more vaccine exemption legislation suggest that the anti-vax movement and its effects are showing no signs of slowing down.

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