Academic journal article Missouri Law Review

Religious & Philosophical Exemptions to Mandatory School Vaccinations: Who Should Bear the Costs to Society?

Academic journal article Missouri Law Review

Religious & Philosophical Exemptions to Mandatory School Vaccinations: Who Should Bear the Costs to Society?

Article excerpt

As of 1999, all fifty states mandate that parents vaccinate their children against at least some diseases, such as measles, rubella, and polio, as a condition of public school enrollment. (1) However, every state has also tailored its legislation to exempt certain individuals from these mandatory vaccinations. Not surprisingly, all states allow medical exemptions to their immunization requirement, under the belief that it makes no sense to force vaccines on children who are allergic to vaccines, have compromised immune systems, or would otherwise suffer more harm than good from receiving a vaccine. (2)

But other types of exemptions from mandatory school vaccination requirements have not been universally embraced. For instance, forty-eight states have instituted religious exemptions to their mandatory vaccination requirements, with West Virginia (3) and Mississippi (4) not believing religious beliefs are sufficient to exclude a child from the requirement. Far fewer states have instituted the more controversial philosophical exemption: only fourteen states recognize non-religious moral or philosophical opposition to vaccination as a legitimate reason to opt out of their school vaccination requirements. (5)

This Essay will discuss the impact that recognizing religious and philosophical exemptions to mandatory school vaccinations may have on society, with a particular focus on who should bear the costs of the negative externalities created by widespread use of such exemptions. Part I will discuss the rationale behind mandatory vaccinations and identify the costs associated with religious and philosophical exemptions. Part II will discuss the current state of school vaccination law and explain why society cannot expect legislatures to completely eliminate religious and philosophical exemptions or rely on the judiciary to provide a proper check on the abuse of such exemptions. Part III will then address the issue of who should bear the costs of such exemptions, arguing that state and local governments, and potentially the federal government, should institute measures to ensure that those who elect religious and philosophical exemptions reimburse the rest of society for the negative externalities they have created.

I. THE COSTS OF RELIGIOUS &PHILOSOPHICAL EXEMPTIONS

Many scholars fear that "serious consequences will follow the proliferation of legally sanctioned exemptions to compulsory vaccinations." (6) Although many who support religious and philosophical exemptions view the decision to vaccinate one's child as an individual rights issue, such a focus ignores that the benefits of mandatory vaccination are communal as well as individual. Thus, it should come as no surprise that the cost of widespread non-compliance with mandatory school vaccinations will not only result in the loss of such communal benefits, but will also impose significant costs on the entire community.

A. Non-Medical Exemptions Jeopardize Herd Immunity

When a critical mass of a community's members are vaccinated from a given disease, "herd immunity" prevents that disease from gaining a foothold in the community. The very high percentage of immunized individuals serves as a "protective barrier" that keeps the disease from spreading to those who are too young to be immunized or have compromised immune systems due to old age or diseases such as AIDS. (7) Creating such a protective barrier through herd immunity has always been one of the major goals of mandatory school immunization laws--by immunizing virtually all school children in a given community, state governments can ensure that the "herd immunity" effect will continue in perpetuity, as community immunization levels continue to remain at the high percentage required to prevent the spread of disease. (8)

Religious and philosophical exemptions may jeopardize herd immunity in certain communities. Although the percentage of the population that must be immunized to ensure herd immunity varies depending on the disease, it will remain a relatively large percentage--for instance, more than 90 percent of the population must be immunized in order to provide herd immunity protection from measles. …

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