A Shot in the Dark: Why Parents Should Not be Held Civilly Liable for Injuries Caused by Unvaccinated Children
Wednesday, May 7, 2014

F. Scott Fitzgerald once wrote that “[t]here are no second acts in American lives.”[i] Yet popular culture is replete with numerous instances of entertainers getting a second wind and pulling off seemingly improbable comebacks. In 1968, for example, Elvis Presley broke through a decade-long career malaise with a hit television special that reintroduced him to a generation of music fans that had long since discarded him for the Beatles and the Rolling Stones. Four years later, legendary filmmaker Charlie Chaplin briefly returned to the U.S. to claim an honorary Academy Award after spending twenty years in political exile. Even 1960s icon Cher made an unlikely return to musical relevance in 1999 when she scored a number one hit song over twenty-four years after her last single topped the charts.[ii]

Other comebacks are less celebrated. In 2000, the Centers for Disease Control (CDC) reported that the measles had been virtually eradicated in the U.S. The few cases that still occurred were usually traced to foreigners who brought the disease into the country. Only thirteen years after it was relegated to a historical footnote, however, the measles reemerged with a vengeance in several communities. In late 2009 and early 2010, for example, a measles breakout occurred among upstate New York’s Orthodox Jewish population. More than 3,500 people were sickened.[iii] Another outbreak in June 2013 resulted in forty-eight more confirmed cases of the disease.[iv] More recently, a measles epidemic sickened twenty-one members of the Eagle Mountain Church in Copeland, Texas. As of August 2013, there were 135 documented cases of the measles this year alone.[v]

While the overall vaccination rate in most areas remains high enough to sustain effective herd immunity coverage for the entire population, the anti-vaccination movement in general—and the rampant use of religious and philosophical exemptions to compulsory child vaccination laws by parents in particular—poses a danger to the public health in several different regions of the U.S. Young children and infants are among the most vulnerable in these areas. In a single whooping cough outbreak in Tarrant County, Texas, hundreds of unvaccinated children became ill and two infants too young to be vaccinated died from the disease. Not surprisingly, the number of parents living in the region who had procured vaccine exemptions for their children had more than doubled during the five years prior to the outbreak.[vi]

Under the current legal framework, states can lawfully use their police powers to enact public health laws mandating vaccination as a prerequisite for school attendance. At the same time, state legislatures have taken advantage of the broad discretion granted to them by the U.S. Supreme Court in matters of public health to enact religious and philosophical exemptions to child vaccine mandates. In response to the recent spate of outbreaks of vaccine-preventable disease in vaccine-hesitant communities, bioethicist Art Caplan has argued that tort law should be used to hold parents civilly liable for injuries caused by their unvaccinated children. While tort law is valuable as a tool for obtaining legal redress for injured parties, it raises difficult procedural and jurisdictional issues in the context of vaccination and is ineffective at achieving important public policy goals secured by herd immunity.

As the chief molders of public policy, state legislatures should instead take the initiative of using their broad police powers to prevent the harm caused by the rampant use of non-medical vaccine exemptions from occurring in the first place. Rather than relying on tort, through public health law states can better address the underlying factors contributing to soaring vaccine exemption rates in certain parts of the U.S. More precisely, states should limit the scope of religious and philosophical exemptions to make it more difficult for parents to obtain them. At the same time, states should counter popular vaccine myths by increasing vaccine access and education. Parents in particular should understand the benefits of vaccination, as well as the potential health consequences of failing to vaccinate a child, before obtaining an exemption.

The Legal Framework: Mandatory Vaccination and Exemptions

Mandatory vaccination laws are designed to further the public health by “slow[ing] the spread of disease” and “reduc[ing] mortality and morbidity.”[vii] Compulsory vaccination accomplishes this by achieving herd immunity.[viii] Herd immunity derives from the notion that

[v]accines are never one hundred percent effective for everybody, so even vaccinated people can become infected with diseases against which they were immunized. But if enough people in a population are effectively immunized against a disease, the population can achieve a herd immunity that protects everybody. The idea is that the disease will not break out in the population because too few people are capable of carrying it and passing it on to others.[ix]

Herd immunity does not just protect those who are immunized; it protects unvaccinated individuals, too, by forming a protective shield of immunity around them. This inhibits potential outbreaks from occurring in the first place. For herd immunity to provide effective coverage, the CDC recommends that 90% of the population be vaccinated in a given area.[x]

Opposition to mandatory vaccination is hardly novel. Vaccines have prompted controversy ever since Dr. Edward Jenner became the first physician to utilize “systematic, deliberate inoculation based on scientific principles” to control smallpox outbreaks in the mid-eighteenth century.[xi] Although Dr. Jenner’s groundbreaking program succeeded in reducing smallpox outbreaks from devastating epidemics to manageable emergencies, public distrust and governmental inaction thwarted efforts to implement public vaccination laws around the globe for many years. Vaccine shortages were common, and inexperienced medical professionals often botched the procedure. Deficiencies like these aggravated public confidence in vaccination, but the fear of contracting smallpox eventually overwhelmed enough peoples’ reservations that compulsory vaccination laws were enacted throughout much of Europe by the 1850s.[xii]

In the U.S., the rise of mandatory vaccination is inextricably linked to the states’ contemporaneous policy interest in securing regular school attendance for children. In 1827, Massachusetts became the first state to require vaccinations for children as a prerequisite for school attendance.[xiii] These laws made practical sense for state and municipal governments because “the bringing together of large numbers of children clearly facilitated the spread of smallpox, and since vaccination provided a relatively safe preventative, it was natural that compulsory school attendance laws should lead to a movement for compulsory vaccination.[xiv] Vaccines were a relatively inexpensive way of benefiting entire communities. By vaccinating almost every child at a young age and tying it to education, state and local governments made a long-term investment in the health and welfare of their residents in one fell swoop.[xv]

Mandatory “vaccinations are . . . among the most cost-effective and widely used public health interventions.”[xvi] Nevertheless, the emergence of aggressive public health laws in the late nineteenth-century renewed anti-vaccine sentiment in the U.S. and elsewhere. Many dissenters believed myths that vaccines caused disease instead of preventing it. Others objected to vaccination for religious, philosophical, or constitutional reasons. To them, aggressive state vaccination schemes violated their individual liberty and personal autonomy.[xvii] Under the current legal framework, however, states hold broad police power to enact public health legislation. Given the U.S. Supreme Court’s traditional deference to state legislatures in this regard, states have crafted mandatory school vaccination laws replete with medical, religious, and philosophical exemptions for parents who choose to withhold vaccination from their children for personal reasons.

Mandatory Vaccination Laws

In Jacobson v. Massachusetts, 197 U.S. 11 (1905),the U.S. Supreme Court held that mandatory vaccination laws were constitutional exercises of state police power. Factually, Jacobson centered on a Massachusetts state law that allowed city governments to enact compulsory vaccination ordinances if the local board of health deemed them “necessary” to protect the public health or safety.[xviii]In response to a smallpox outbreak in late 1901, the city of Cambridge’s board of health enacted such an ordinance. The law mandated smallpox vaccinations for every person aged twenty-one years and older that had not been vaccinated against the disease within the preceding five years. Those who failed to comply with the ordinance were subject to a five-dollar fine.[xix]

The plaintiff, Henning Jacobson, believed that vaccination “quite often” caused serious injuries or death and refused to obey the law.[xx] He also refused to pay the small penalty for noncompliance and was arrested.[xxi] The trial court found Jacobson guilty of violating the ordinance and ordered him to confinement until he paid the five-dollar fine. Jacobson appealed, but the Massachusetts Supreme Court affirmed his conviction. Jacobson appealed again, this time to the U.S. Supreme Court, reiterating his arguments that the ordinance violating his Due Process rights under the Fourteenth Amendment.[xxii]

The Court disagreed. Writing for the majority, Justice Harlan drew on social contract theory to justify the vaccination ordinance as a lawful extension of the state’s broad police power to enact legislation that had a “real” and “substantial relation” to the protection of “the public health, the public morals, or the public safety.[xxiii] Under this analysis, “the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect” public health and safety.[xxiv] Because Cambridge’s vaccine mandate represented a “reasonable and proper” exercise of state police power to advance public health goals, it passed constitutional muster.[xxv]

At the same time, the Court also limited the reach of state police powers utilized to enact public health legislation. States must exercise police power in congruence with “the necessity of the case” and cannot employ it to achieve “unreasonable, arbitrary, and oppressive” ends.[xxvi] The Court developed a proportionality test to determine whether a public health law satisfies this requirement: any law designed to protect the public health or safety must bear a “real or substantial relation to those objects, or is [not] . . . a plain, palpable invasion of rights secured by” the law.[xxvii] Under this analysis, for example, the Court carved out a medical exemption to vaccination because it would be unreasonable for an individual who could be harmed by the procedure due to legitimate health reasons to be forced to submit to it.[xxviii]

While Jacobson granted state legislatures wide latitude to enact vaccine mandates, it left unanswered the more specific question of whether state laws requiring vaccination as a prerequisite for school admission were constitutionally valid. Seventeen years after Jacobson, the Court removed any lingering doubt. In Zucht v. King, 260 U.S. 174 (1922),the Court extended the Jacobson rationale to uphold a city ordinance that compelled childhood vaccination in order for students to attend local schools as a valid extension of state police power. The Court explicitly reaffirmed states’ “broad discretion” to enact public health laws as each sees fit, including the ability to delegate power to city governments to apply and enforce health laws.[xxix]

Vaccine Exemptions

Jacobson and Zucht made it clear that state legislatures maintain broad, though not absolute, discretion when crafting compulsory vaccination laws. Accordingly, every state currently mandates vaccination as a prerequisite for school attendance.[xxx] States have also developed specialized medical, religious, and philosophical exemptions to childhood vaccination requirements. While medical exemptions release children whose health could be compromised by vaccinations from being forced to undergo them, religious and philosophical exemptions allow parents to withhold vaccination for personal reasons.[xxxi] With the exception of Mississippi and West Virginia, every state currently offers a religious vaccine exemption.[xxxii] Additionally, seventeen states[xxxiii] offer broader philosophical vaccine exemptions that typically command a lower standard of proof to obtain than religious exemptions.[xxxiv]

While some critics believe that vaccine exemptions represent onerous proof that vaccines have become “the victims of their own success,” proponents argue that religious and philosophical exemptions serve important policy interests of their own.[xxxv] To the latter, non-medical exemptions protect a crucial “sphere of protected individual liberties” for parents who genuinely object to vaccination.[xxxvi] Under this view, non-medical exemptions safeguard fundamental parental rights protected by the Constitution. Without religious and philosophical exemptions in place, vaccine mandates take this important parenting choice away by substituting a parent’s judgment with the government’s.[xxxvii]

Given the U.S. Supreme Court’s traditional acquiescence to state legislatures in matters of public health, it is not surprising that religious and philosophical vaccine exemptions vary dramatically from state to state.[xxxviii] Nevertheless, religious exemption laws typically take one of two forms. In Nebraska and a majority of states, individuals who belong to “a recognized religious denomination” or have “personal and sincerely followed religious beliefs” can obtain an exemption.[xxxix] South Carolina, on the other hand, represents the minority of states that still require that a parent belong to “a recognized religious denomination” with “tenets and practices” that “conflict with immunizations.[xl] Additionally, among states that offer broader philosophical exemptions, the requirements for obtaining one are typically even more lax than those for religious exemptions.[xli] In Maine, for example, parents can obtain an exemption for “an opposition to the immunization for philosophical reasons.[xlii] This means that parents in Maine can exempt their children from vaccination for virtually any reason whatsoever, regardless of whether it derives from a religious conviction.

The procedural requirements for obtaining religious and philosophical exemptions also differ between jurisdictions. These variations are significant because the level of difficulty involved in obtaining exemptions directly affects the number of parents who seek them. The more exacting the procedure, the less likely it is that parents will exempt their child from vaccination.[xliii] Satisfying Wisconsin’s requirements is relatively easy. Parents merely fill out a standard form that requires them to check a box next to the applicable exemption.[xliv] Texas, on the other hand, imposes some of the most daunting procedures for obtaining a religious or philosophical exemption in the nation. Parents must file a signed affidavit under penalty of perjury every two years that explains the basis for the objection.[xlv]

A Theory in Tort: Holding Parents Civilly Responsible for Injuries Caused by Unvaccinated Children

With a working concept of state vaccine mandate and exemption laws in mind, it is important to consider the context surrounding the criticism of religious and philosophical exemptions in some states. High religious and philosophical vaccine exemption rates have been tied to many of the recent outbreaks of the whooping cough and the measles that have occurred throughout the U.S.[xlvi] Some parents seek exemptions for their children based on sincerely held religious and philosophical beliefs. Others use them as a means of avoiding the inconvenience and expense of having to vaccinate their child. Generally speaking, though, high exemption rates are most common in communities where anti-vaccine parents have clustered together. In Ashland, Oregon, for example, nearly one-third of children claimed vaccine exemptions in 2008, and measles and whooping cough outbreaks are far more common than among the general populace.[xlvii]

In response to the problem of decreasing vaccination rates in Ashland and other communities with high non-medical exemption rates, bioethicist Art Caplan has advocated for using tort law as a policy-shaping tool to help achieve public health goals regarding vaccine mandate compliance. Caplan believes that statutory religious and philosophical exemptions should still be available to parents, but that liability for negligence should flow from any harm caused by their decision to withhold vaccination from a child regardless of whether an exemption has been procured.[xlviii] As Caplan explains,

If your kid gets the measles, and remember public health officials are getting very, very good at tracing outbreaks to their source, and makes my kid sick (can happen since vaccine is not 100% effective), my newborn baby die (newborns can’t benefit from vaccines) or my wife miscarry (fetuses are at especially high risk), then shouldn’t I be able to sue you for the harm you have done?[xlix]

In a typical case, the plaintiff would shoulder the burden of proving each element of a traditional negligence claim in order to recover against the parent of an unvaccinated child: duty, breach of duty, causation, and damages. As to duty, Caplan contends that parents have a general duty to prevent foreseeable harm to others. Because the failure to vaccine could result in reasonably foreseeable harm to the child and others, this duty applies regardless of whether a parent has obtained a religious or philosophical exemption. Caplan believes that exemptions do “not negate the fundamental duty one has to act reasonably in preventing the spread of disease to others,” and the failure to vaccinate a child represents a breach of duty regardless.[l]

With respect to causation, Caplan argues that modern biomedical science has “adequate scientific capability” to prove “with a great deal of confidence, though not absolute certainty,” when one individual conveys a disease to another.[li] Accordingly, plaintiffs would have to rely on epidemiology to trace the course of an outbreak in order to help identify a causal connection between the plaintiff and the unvaccinated individual that transmitted a particular illness.[lii] To satisfy proximate causation, the plaintiff would also have to show that a parent’s decision not to vaccine their child was a “substantial factor” in causing his injuries.[liii] For example, a plaintiff would have to prove that a reasonable person in the parent’s position would have foreseen that the failure to vaccinate their child could lead result in harm to others.[liv] Assuming the plaintiff could demonstrate the duty, breach, and causation components, the plaintiff would only have to prove damages in order to substantiate a prima faciecase of negligence.[lv]

Caplan’s negligence theory has its merits. After all, tort law does play an important role in shaping public policy by redressing private wrongs committed by one individual against another. This could include using tort to hold parents accountable for injuries caused by their decision to withhold vaccination from a child.[lvi] Nevertheless, a number of practical drawbacks make tort law unappealing as a means of achieving the crucial public health interests served by mandatory vaccination. For example, tort law is ineffective at redressing the unrealized harms posed by the widespread failure to vaccinate.[lvii] Although unvaccinated children undoubtedly pose a cognizable health risk to themselves and others, the greatest threat wrought by dangerously high exemption rates is an unrealized one—“an increase in the risk of exposure to contagions in the event of an outbreak.[lviii] It is difficult to prove unrealized harms in tort, especially if a widespread disease outbreak has not yet occurred. Even if an outbreak has occurred, unrealized harms trigger complicated jurisdictional problems if specific injuries cannot be identified given the unpredictable way that contagious disease can spread.[lix]

Moreover, proving causation on the basis of the failure to vaccinate is complicated due to the limits of modern scientific testing and analysis. Although technological advances have made tracking the spread of disease more reliable than ever, it is still “difficult to trace contagions through both place and time.”[lx] Tracing the spread of a disease in communities with large numbers of unvaccinated children is a particularly daunting task. Even when diseases can be accurately traced, it remains unclear who should ultimately be held responsible in a negligence action. Should it be the parent of the child “who directly infected the plaintiff, or every unvaccinated person who passed on the contagion?”[lxi] Even if a responsible party can be isolated and identified, the limits of medical testing mean that infected individuals must be swabbed anywhere from three to seven days after the onset of a disease to collect reliable samples for analysis. If samples are taken more than ten days after an infection, viral isolation cannot be performed at all and crucial evidence is lost.[lxii]

Perhaps the biggest drawback with relying on tort law in this context is its inherent ineffectiveness as a policymaking tool for matters of public health and safety. Tort remedies private damages. It is not designed to further the larger public health goals tied to compulsory vaccination. While parties could conceivably rely on tort theories to obtain compensation for injuries caused by an unvaccinated individual, civil litigation is ultimately an “adversarial remedy” that complicates “community cohesion” and frustrates vaccine compliance by alienating already hesitant parents even further from the community.[lxiii] This is a significant drawback given that the primary threat posed by the widespread failure to vaccinate children is the heightened risk of disease outbreaks among the most vulnerable members of society.[lxiv] For these reasons and others, tort is simply the wrong means to achieve higher childhood vaccination rates.

 Preventative Care: A Public Health Law Approach to Vaccine Health

Fortunately, a better policy mechanism exists: public health law. As the U.S. Supreme Court once noted, “[p]rimarily it is for the lawmakers to determine the public policy of the state.”[lxv] State legislatures should act accordingly by taking a proactive, multi-faceted approach to increase the number of children who obtain vaccinations despite the existence of religious and philosophical exemptions. Instead of relying on individuals to file private tort actions after an injury has occurred and the harm has already been done, legislatures should update existing exemption laws and implement new public health initiatives designed to prevent vaccine noncompliance-related harm from occurring in the first place. More specifically, states should use their broad police powers in matters of public health—particularly the parens patriae power—to amend existing non-medical exemption laws in order to make it more difficult for parents to obtain them. Doing so would be morally justified under the Harm Principle. Additionally, states should make increased efforts to educate parents about vaccine benefits and also provide greater access to them by providing them to the public for free.

State Police Powers: Amending Vaccine Exemptions

Under Zucht and Jacobson, state legislatures clearly retain wide discretion to use police power to enact ambitious mandatory vaccination laws in order to protect the public health.[lxvi] If states can implement this authority to create religious and philosophical exemptions to such mandates, it follows that state legislatures should also be able to limit the scope of exemptions when necessary to secure the public health and safety. Withholding vaccinations from children should require more than checking a box on a standard form, as in Wisconsin. States that currently enforce lax standards for obtaining religious and philosophical exemptions should instead follow the lead of Texas and impose more exacting requirements that discourage parents from obtaining exemptions without eliminating them altogether. By asking parents to submit biennial written and signed affidavits that expose them to the penalty of perjury if they lie under oath, states reduce the likelihood that parents will seek exemptions in general, including for insincere reasons of convenience.[lxvii] Moreover, because the impact of widespread vaccine non-compliance is felt mostly at a local or regional level, states could also empower municipal governments to enact mandatory vaccination ordinances that limit or eliminate exemptions altogether as a preventative health measure in areas afflicted with high exemption rates.[lxviii]

Amending current exemption laws in response to the burgeoning health threat that widespread vaccine noncompliance poses to several communities is not only supported by existing case law; it is ethically justified under the Harm Principle. The Harm Principle is arguably “[t]he single most prominent moral principle reflected in U.S. social policy and law” throughout the nation’s history.[lxix] As John Stuart Mill articulated, the Harm Principle holds that “[t]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his or her will, is to prevent harm to others.”[lxx] Mill’s definition is grounded in terms of standing:[lxxi]

As soon as any part of a person's conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion. But there is no room for entertaining any such question when a person's conduct affects the interests of no persons besides himself, or needs not affect them unless they like . . . . In all such cases there should be perfect freedom, legal and social, to do the action and stand the consequences.[lxxii]

By emphasizing the relationship between individual conduct and its impact on the larger community, the U.S. Supreme Court drew on the Harm Principle in much of its analysis in Jacobson. The Court expressly refused to recognize a right to absolute individual liberty. Instead, “[t]here are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.[lxxiii] A society organized around the concept that “one is a law unto himself,” the Court stressed, would end in “disorder and anarchy.”[lxxiv] As a result, the Massachusetts Legislature maintained the right to act in “self-defense” by mandating vaccination to protect against the spread of contagious disease.[lxxv] The Jacobson result made it clear that the health and safety of the community could not be held hostage by a fringe group of vaccine resisters.[lxxvi]

High vaccine exemption rates have been linked to whooping cough and measles outbreaks in several different communities and pose a threat to the general public health and safety in those areas.[lxxvii] At the same time, state legislatures should remain cognizant of the health implications that individual unvaccinated children face to themselves and others by exercising parens patriae power accordingly. Parens patriae power is a specialized police power that allows the state to act in loco parentis in order to protect children from a potentially dangerous parenting decision.[lxxviii] Children occupy a “special place” in society, and because their “constitutional rights . . . cannot be equated with those of adults” they command special protection under the law.[lxxix] Consequently, parens patriae doctrine provides an alternative basis for states to restrict the scope of existing religious and philosophical exemptions or eliminating them altogether in order to protect children from the dangerous parenting choice of leaving them unvaccinated.

Existing case law bolsters the notion that states could utilize parens patriae power to protect individual children from a parent’s decision to withhold vaccination, regardless of whether a statutory exemption applies. For example, the U.S. Supreme Court held in Prince v. Massachusetts, 321 U.S. 158 (1944) that a state could invoke parens patriae doctrine to enact public health laws designed to secure “the healthy, well-rounded growth of young people into full maturity as citizens,” regardless of whether doing so intruded on fundamental religious and parental liberties.[lxxx] More specifically, the Court determined that religious liberty could not insulate the family unit from the reach of public interest legislation. On the contrary, parents’ religious or philosophical convictions may not be used “to claim freedom from compulsory vaccination for the child.[lxxxi]

The Court also reaffirmed states’ “wide range of power for limiting parental freedom and authority in things affecting the child’s welfare; and . . . this includes, to some extent, matters of conscience and religious conviction.”[lxxxii] Child vaccination ranks among the areas of religious liberty that states can lawfully control in lieu of parents as “[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”[lxxxiii] Because unvaccinated children are thirty-five times more likely to contract disease than their vaccinated peers, obtaining a religious or philosophical exemption constitutes a poor parenting choice that imperils children in areas with high exemption rates.[lxxxiv]

Other Public Health Initiatives

Although tightening the legal requirements for obtaining religious and philosophical exemptions would likely discourage vaccine-hesitant parents from seeking them, other measures should be taken to increase vaccine access and education. Because of vaccines, most parents in the U.S. today simply “have not witnessed the tragic effects of diseases like polio, smallpox, measles, and whooping cough” that led to the enactment of vaccine mandates in the first place.[lxxxv] The advent of the Internet has also fueled a great deal of anti-vaccine sentiment. Anti-vaccine websites have created a subculture of doubt about vaccine efficacy by “questioning the scientific veracity” of vaccines and claiming that they are unsafe for children.[lxxxvi] Consequently, state governments should try to demystify common vaccine myths and counter widespread misinformation about their health and safety through initiatives of their own.

In terms of educating the public, public health officials and the media should use “clear, non-sensationalized” efforts to communicate the individual and collective health benefits to vaccine-hesitant parents.[lxxxvii] The media should downplay “personalized” and “dramatic” news reporting tactics and emphasize “historical, institutional, and social contexts” when reporting on vaccination.[lxxxviii] At the same time, public health officials should avoid using “shock tactics” and scary statistics to grab public attention and shame anti-vaccine parents.[lxxxix] States should adopt public health “communication infrastructure” that accurately, quickly, and directly delivers sound health information to the public in order to avoid distortion by third parties.[xc] What must ultimately occur is a wholesale change in mindset among vaccine-hesitant parents in order to engage them in the community and help them to forego their individual interest in withholding vaccination from their child. As the molders of public policy, state legislatures are uniquely equipped to accomplish this, but only if they communicate the message effectively.[xci]

Among other things, state legislatures could institute an informed refusal process for parents to obtain religious and philosophical exemptions for their children. Under this requirement, doctors would inform parents of the health risks of refusing vaccination for their child. Parents would then have to sign a release form acknowledging that they understand the individual and collective risks of exemption.[xcii] This would provide one of the most effective means of offering direct and accurate information from a medical professional about vaccine safety before a parent makes the choice to exempt their child from vaccination. States should also increase vaccine access by allocating more resources to provide free vaccinations to all children, regardless of socioeconomic status.[xciii]


Mandatory vaccination programs represent one of the greatest public health achievements in human history. While tort law might provide redress for private harms caused by a parent’s decision not to vaccinate their child, public health policy is best served by proactive state legislatures that wield police power appropriately in order to curb the adverse impact of high non-medical exemption rates within their borders. By increasing vaccine education and access as well, state legislatures can effectively corral the public health risks posed by high concentrations of unvaccinated children in a given area. With appropriate public health laws in place, perhaps Fitzgerald will be vindicated and the measles’ second act will be its last. The health and wellbeing of countless people depend on it.

[i] Robert McCrum, Great Scott! Fitzgerald is Enjoying a Third Act, The Guardian, Feb. 4, 2012, http://www.theguardian.com/books/2012/feb/05/scott-fitzgerald-gatsby-mccrum.

[ii] Peter Guralnick, Careless Love: The Unmaking of Elvis Presley 322-25 (1999); David Robinson, Chaplin: His Life and Art 622-25 (1985); Keith Caulfield, Cher Shines with No. 1 in Sixth Consecutive Decade, Billboard (Jan. 18, 2011, 12:30 PM), http://www.billboard.com/articles/news/473595/cher-shines-with-no-1-in-sixth-consecutive-decade.

[iii] David Schultz, To Stem Mumps Outbreak, Doctors Try an Extra Vaccination, NPR, (Oct. 31, 2012, 5:01 PM), http://www.npr.org/blogs/health/2012/10/31/164024772/in-an-orthodox-jewish-community-two-vaccine-doses-wasn-t-enough.

[iv] Daniel Sayani, Examiner.com, June 6, 2013, http://www.examiner.com/article/measles-outbreak-hits-brooklyn-s-ultra-orthodox-community.

[v] Liz Szabo, Texas Measles Outbreak Linked to Church, USA Today, Aug. 25, 2013, http://www.usatoday.com/story/news/nation/2013/08/23/texas-measles-outbreak/2693945/; Texas Megachurch Scrutinized Following Measles Outbreak, CBS DFW (Aug. 31, 2013, 12:43 PM), http://dfw.cbslocal.com/2013/08/31/texas-megachurch-scrutinized-following-measles-outbreak/.

[vi] Becca Aaronson, NY Times, Sept. 7, 2013, http://www.nytimes.com/2013/09/08/us/outbreaks-make-a-case-for-vaccinations.html; Liz Szabo, Texas Measles Outbreak Linked to Church, USA Today, Aug. 25, 2013, http://www.usatoday.com/story/news/nation/2013/08/23/texas-measles-outbreak/2693945/.

[vii] Daniel B. Rubin & Sophie Kasimow, Noncompliance: Public Health Goals and the Limitations of Tort Law, 107 Mich. L. Rev. First Impressions 114, 114 (2009), http://www.michiganlaw


[viii] Paul E.M. Fine, Herd Immunity: History, Theory, Practice, 15 Epidemiologic Rev. 265, 267 (1993).

[ix] Note, Toward a Twenty-First Century Jacobson v. Massachusetts, 121 Harv. L. Rev. 1820, 1821 (2008).

[x] Ryan Jaslow, CBS News (Sept. 12, 2013, 3:01 PM), http://www.cbsnews.com/8301-204_162-57602677/cdc-vaccine-philosophical-differences-driving-up-u.s-measles-rates/.

[xi] James G. Hodge, Jr. & Lawrence O. Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 Ky. L.J. 831, 838 (2001).

[xii] Id. at 840-41.

[xiii] Michael Poreda, Comment, Reforming New Jersey’s Vaccination Policy: The Case for the Conscientious Exemption Bill, 41 Seton L. Rev. 765, 769-70 (2011).

[xiv] John Duffy, School Vaccination: The Precursor to School Medical Inspection, 33 J. Hist. Med. 344, 344 (1978).

[xv] Hodge & Gostin, supra note 11, at 851.

[xvi] Id. at 844.

[xvii] Id. at 844-45.

[xviii] Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905).

[xix] Id. at 22-24.

[xx] Id. at 36.

[xxi] Id.

[xxii] Id. at 22-24, 29-30.

[xxiii] Id. at 30-31.

[xxiv] Id. at 24-25.

[xxv] Id. at 27-30, 34-37.

[xxvi] Id. at 26.

[xxvii] Id. at 31.

[xxviii] Id. at 39.

[xxix] Zucht v. King, 260 U.S. 174, 175-77 (1922).

[xxx] Poreda, supra note 13, at771.

[xxxi] Note, supra note 9, at 1825.

[xxxii] Religious vaccine exemption statutes for each respective state and Washington, D.C., are located at Ala. Code. § 16-30-3 (Westlaw through the end of the 2013 Regular Session); Alaska Admin. Code tit. 4, § 06.055 (Westlaw through June 7, 2013 (Register 206)); Ariz. Rev. Stat. Ann. § 36-883 (Westlaw through the First Regular and First Special Sessions of the Fifty-First Legislature); Ark. Code Ann. § 6-18-702 (West, Westlaw through end of 2013 Regular Session); Cal. Code Regs. tit. 17, § 6051 (Westlaw through 10/11/13 Register 2013, No. 41); Colo. Rev. Stat. Ann. § 25-4-903 (West, Westlaw through the First Regular Session of the Sixty-Ninth General Assembly (2013)); Conn. Gen. Stat. Ann. § 10-204a (West, Westlaw through the current acts of the 2013 January Regular Session of the Connecticut General Assembly); 14 Del. Code Ann. tit. 14, § 131 (West, Westlaw through 79 Laws 2013, chs. 1-185(end)); D.C. Code § 38-506 (Westlaw through July 29, 2013); Fla. Stat. Ann. § 1002.20 (West, Westlaw through Ch. 272 (End) of the 2013 1st Reg. Sess. Of the Twenty-Third Legislature); Ga. Code Ann. § 20-2-771 (West, Westlaw through the end of the 2013 Regular Session); Haw. Rev. Stat. § 302A-1156 (West, Westlaw through Act 288 [End] of the 2013 Regular Session); Idaho Code Ann. § 39-4802 (West, Westlaw through (2013) Chs. 1-354 (End)); 105 ILCS 5/27-8.1 (Westlaw through P.A. 98-486, with the exception of P.A. 98-455, P.A. 98-456, and P.A. 98-463, of the 2013 Reg. Sess.); Ind. Code Ann. § 20-34-3-2 (West, Westlaw through all 2013 legislation); Iowa Code Ann. § 139A.8 (West, Westlaw through legislation from the 2013 Reg. Sess.); Kan. Stat. Ann. § 65-508 (West, Westlaw through 2013 regular and special sessions); Ky. Rev. Stat. Ann. § 214.036 (West, Westlaw through the end of the 2013 regular session and the 2013 extraordinary session); La. Rev. Stat. Ann. § 40:31.16 (Westlaw through the 2013 Regular Session); Me. Rev. Stat. tit. 20-A, § 6355 (Westlaw through the 2013 First Regular Session and First Special Session of the 126th Legislature); Md. Code Ann., Educ. § 7-403 (West, Westlaw through all chapters of the 2013 Regular Session of the General Assembly); Mass. Gen. Laws Ann. ch. 76, § 15 (West, Westlaw through Chapter 114 of the 2013 1st Annual Session); Mich. Comp. Laws Ann. § 333.9215 (West, Westlaw through P.A.2013, No. 138, of the 2013 Regular Session, 97th Legislature); Minn. Stat. Ann. § 121A.15 (West, Westlaw through the 2013 Regular and First Special Sessions effective through July 31, 2013); Mo. Ann. Stat. § 167.181 (West, Westlaw through the end of the 2013 First Regular Session of the 97th General Assembly, pending corrections received from the Missouri Revisor of Statutes. Constitution is current through the November 6, 2012 General Election); Mont. Code Ann. § 20-5-405 (Westlaw through chapters effective July 1, 2013, and the 2012 general election. Statutory changes are subject to classification and revision by the Code Commissioner); Neb. Rev. Stat. § 79-221 (2013); Nev. Rev. Stat. Ann. § 392.437 (West, Westlaw through the 2011 76th Regular Session of the Nevada Legislature, and technical corrections received from the Legislative Counsel Bureau (2012)); N.H. Rev. Stat. Ann. § 141-C:20-c (Westlaw through Chapter 279 of the 2013 Reg. Sess., not including changes and corrections made by the State of New Hampshire, Office of Legislative Services); N.J. Stat. Ann. § 18A:61D-3 (West, Westlaw through L.2013, c. 165 and J.R. No. 11); N.M. Stat. Ann. § 24-5-3 (West, Westlaw through Ch. 228 (end) of the First Regular Session of the 51st Legislature (2013)); N.Y. Pub. Health Law § 2164 (McKinney, Westlaw through L.2013, chapters 1 to 340); N.C. Gen. Stat. Ann. § 130A-157 (West, Westlaw through S.L. 2013-257 of the 2013 Regular Session of the General Assembly); N.D. Cent. Code Ann. § 23-07-17.1 (West, Westlaw through the 2013 Regular Session of the 63rd Legislative Assembly); Ohio Rev. Code Ann. § 3313.671 (West, Westlaw through 2013 Files 24 and 26 to 38 of the 130th GA (2013-2014)); Okla. Stat. Ann. tit. 10, § 413 (West, Westlaw through the First Regular Session of the 54th Legislature (2013) effective July 1, 2013); Or. Rev. Stat. Ann. § 433.267 (West, Westlaw through the 2013 Reg. and Sp. Sess. legislation effective through 10/8/13. Revisions to Acts made by the Oregon Reviser were unavailable at the time of publication); 28 Pa. Code § 23.84 (Westlaw through Pennsylvania Bulletin, Vol. 43, Num. 42, dated October 19, 2013); R.I. Gen. Laws Ann. § 16-38-2 (West, Westlaw through chapter 534 of the 2013 Regular Session); S.C. Code Ann. § 44-29-180 (Westlaw through End of 2012 Reg. Sess.); S.D. Codified Laws § 13-28-7.1 (Westlaw through 2013 Regular Session and Supreme Court Rule 13-08); Tenn. Code Ann. § 37-10-402 (West, Westlaw through end of 2013 First Reg. Sess.); Tex. Health and Safety Code Ann. § 161.004 (West, Westlaw through the end of the 2013 Third Called Session of the 83rd Legislature); Utah Code Ann. § 53A-11-302 (West, Westlaw through 2013 First Special Session); Vt. Stat. Ann. tit. 18, § 1122 (West, Westlaw through the laws of the First Session of the 2013-2014 Vermont General Assembly (2013); Va. Code Ann. § 22.1-271.4 (West, Westlaw through the End of the 2013 Reg. Sess. and the End of the 2013 Sp. Sess. I.); Wash. Rev. Code Ann. § 28A.210.090 (West, Westlaw through all 2013 Legislation); Wis. Stat. Ann. § 252.04 (West, Westlaw through 2013 Wisconsin Act 45, published 8/06/2013); Wyo. Stat. Ann. § 21-4-309 (West, Westlaw through the 2013 General Session).

[xxxiii] Philosophical exemption statutes for each respective state can be found at Ariz. Rev. Stat. Ann. § 15-873(Westlaw through the First Regular and First Special Sessions of the Fifty-first Legislature); Ark. Code Ann.§ 6-18-702 (West, Westlaw through end of 2013 Regular Session); Cal. Code Regs. tit. 17, § 6051 (Westlaw through 10/11/13 Register 2013, No. 41), Colo. Rev. Stat. Ann. § 25-4-903 (West, Westlaw through the First Regular Session of the Sixty-Ninth General Assembly (2013)); Idaho Code Ann. § 39-4802 (West, Westlaw through (2013) Chs. 1-354 (End)); La. Admin. Code tit. 51, pt. II § 701 (Westlaw through rules published in the Louisiana Register dated August 20, 2013); Me. Rev. Stat. tit. 20-A, § 6355 (Westlaw through the 2013 First Regular Session and First Special Session of the 126th Legislature); Mich. Comp. Laws Ann. § 333.9215 (West, Westlaw through P.A.2013, No. 138, of the 2013 Regular Session, 97th Legislature); Minn. Stat. Ann. § 121A.15 (West, Westlaw through the 2013 Regular and First Special Sessions effective through July 31, 2013); N.D. Cent. Code Ann. § 23-07-17.1 (West, Westlaw through the 2013 Regular Session of the 63rd Legislative Assembly); Ohio Rev. Code Ann. § 3313.671 (West, Westlaw through 2013 Files 24 and 26 to 38 of the 130th GA (2013-2014)); Okla. Stat. Ann. tit. 10, § 413 (West, Westlaw through the First Regular Session of the 54th Legislature (2013) effective July 1, 2013); Tex. Health and Safety Code Ann. § 161.004 (West, Westlaw through the end of the 2013 Third Called Session of the 83rd Legislature); Utah Code Ann. § 53A-11-302 (West, Westlaw through 2013 First Special Session); Vt. Stat. Ann. tit. 18, § 1122 (West, Westlaw through the laws of the First Session of the 2013-2014 Vermont General Assembly (2013); Wash. Rev. Code Ann. § 28A.210.090 (West, Westlaw through all 2013 Legislation); Wis. Stat. Ann. § 252.04 (West, Westlaw through 2013 Wisconsin Act 45, published 8/06/2013).

[xxxiv] Note, supra note 9, at 1825; Ross D. Silverman, No More Kidding Around: Restructuring Non-Medical Childhood Immunization Exemptions to Ensure Public Health Protection, 12 Annals Health L. 277, 282 (2003); Katherine Southard, One Step Forward, Two Steps Back: How Mandating the Human Papillomavirus Vaccine Will Increase the Use of Vaccine Exemptions and Negatively Impact our Nation's Health, 18 J.L. & Pol’y 503, 520 (2009).

[xxxv] Anthony Ciolli, Mandatory School Vaccinations: The Role of Tort Law, 81Yale J. Biology & Med. 129, 131 (2008); Sabrina Tavernise, Washington State Makes it Harder to Forgo Immunizations, NY Times, Sept. 19, 2012, http://www.nytimes.com/2012/09/20/health/washington-state-makes-it-harder-to-forgo-immunizations.html?_r=0.

[xxxvi] Note, supra note 9, at 1823.

[xxxvii] See Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected . . . . It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”)

[xxxviii] See supra Part. II.A.

[xxxix] Neb. Rev. Stat. § 79-221 (2013).

[xl] S.C. Code Ann. Regs. 61-8 (West, Westlaw through State Register Volume 37, Issue 9, effective September 27, 2013).

[xli] Lara Salahi, Vermont Debates Parent’s Choice to Vaccinate, ABC News, Apr. 25, 2012, http://abcnews.go.com/Health/vermont-debates-parents-choice-vaccinate/story?id=16204212.

[xlii] Me. Rev. Stat. tit. 20-A, § 6355 (West, Westlaw through the 2013 First Regular Session and First Special Session of the 126th Legislature).

[xliii] Sabrina Tavernise, Washington State Makes it Harder to Forgo Immunizations, NY Times, Sept. 19, 2012, http://www.nytimes.com/2012/09/20/health/washington-state-makes-it-harder-to-forgo-immunizations.html?_r=0.

[xliv] Wis. Stat. Ann. § 252.04 (West, Westlaw through 2013 Wisconsin Act 45, published 8/06/2013.

[xlv] Tex. Health and Safety Code Ann. § 161.004-0041 (West, Westlaw through the end of the 2013 Third Called Session of the 83rd Legislature).

[xlvi] Saad B. Omer et al., Vaccination Policies and Rates of Exemption from Immunization, 2005-2011, 367 New Eng. J. Med. 1170-71 (2012).

[xlvii] Ciolli, supra note 35, at 131; Note, supra note 9, at 1826; JoNel Aleccia, Vaccine-Wary Parents Spark Public Health Worry, NBCNews.com, Aug. 22, 2008, http://www.nbcnews.com/

id/26291109/#.UoLM5o01ZOh; Editorial, Foolish Vaccine Exemptions, NY Times, Oct. 12, 2006,http://www.nytimes.com/2006/10/12/opinion/12thu4.html?_r=0.

[xlviii] Arthur Caplan, Liability for Failure to Vaccinate (May 23, 2013), Bill of Health, http://blogs.law.harvard.edu/billofhealth/2013/05/23/liability-for-failure-to-vaccinate/.

[xlix] Id.

[l] Arthur Caplan et al., Free to Choose but Liable for the Consequences: Should Non-Vaccinators Be Penalized for the Harm They Do? 40 J.L. Med. & Ethics 606, 608-09 (2012).

[li] Id. at 606-07.

[lii] Id. at 607.

[liii] Id.

[liv] Id.

[lv] Id.

[lvi] Ciolli, supra note 35, at 131-32.

[lvii] An unrealized harm occurs when a person acts tortuously, but no person or property is harmed. John C.P. Goldberg & Benjamin C. Zipursky, Unrealized Torts, 88 Va. L. Rev. 1624, 1638-39 (2002). Because “tort law concerns itself with wrongs, not every wrong or even every legal wrong is a tort. Tort utilizes a conception of wrongs that involves ‘realized’ wrongs.” Id. at 1638. Nevertheless, “enhanced-risk” unrealized harms pleaded in tort do not necessarily fail. Id. at 1650. For example, a plaintiff could frame an unrealized harm as a realized harm by alleging that the defendant “expos[ed] the plaintiff to a still-extant risk of bodily harm or illness” or by linking it to a realizable harm like “emotional distress or economic loss.” Id.

[lviii] Rubin & Kasimow, supra note 7, at 117.

[lix] Id.

[lx] Id. at 117-18.

[lxi] Id. at 118.

[lxii] Caplan, supra note 50, at 607, 609.

[lxiii] Rubin & Kasimow, supra note 7, at 117.

[lxiv] See, e.g., Thomas C. Galligan, Jr., Deterrence: The Legitimate Function of the Public Tort, 58 Wash. & Lee L. Rev. 1019 (2001) for a discussion of how tort law can effectively serve public policy by deterring others from committing wrongs that could result in civil liability.

[lxv] Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 357 (1931).

[lxvi] See supra Part II.

[lxvii] Omer et al., supra note 46, at 1170-71.

[lxviii] See Zucht, 260 U.S. at 176-77 (“[A] state may, consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.”).

[lxix] Ross D. Silverman & Thomas May, Private Choice Versus Public Health: Religion, Morality, and Childhood Vaccination Law, 1 U. Md. L.J. Race, Religion, Gender & Class 505, 510 (2001).

[lxx] John Stuart Mill, On Liberty 8 (Dover Publications, Inc. 2002) (1859).

[lxxi] Gerald J. Postema, Public Faces—Private Places: Liberalism and the Enforcement of Morality, in Morality, Harm, and the Law 76, 82  (Gerald Dworkin, ed., 1994).

[lxxii] Mill, supra note 70, at 8.

[lxxiii] Jacobson, 197 U.S. at 26.

[lxxiv] Id. at 26.

[lxxv] Id. at 27-28.

[lxxvi] Id. at 26.

[lxxvii] Daniel R. Feiken et al., Individual and Community Risks of Measles and Pertussis Associated with Personal Exemptions to Immunization, 284 JAMA 3145, 3146-50 (2000).

[lxxviii] Douglas S. Diekema, Parental Refusals of Medical Treatment: The Harm Principle as Threshold for State Intervention, 25 Theoretical Med. 243, 250 (2004).

[lxxix] Bellotti v. Baird,443 U.S. 622, 633-34 (1979).

[lxxx] Prince v. Massachusetts, 321 U.S. 158, 168-69 (1944).

[lxxxi] Id. at 166-67.

[lxxxii] Id. at 167.

[lxxxiii] Id. at 166-67.

[lxxxiv] Alicia Novak, The Religious and Philosophical Exemptions to State-Compelled Vaccination: Constitutional and Other Challenges, 7 U. Pa. J. Const. L. 1101, 1118-20 (2005).

[lxxxv] Rubin & Kasimow, supra note 7, at 118.

[lxxxvi] Felicia B. Eshragh, Same Debate, Different Result: Parental Opt-Outs of a Mandated HPV Vaccine, 2 St. Louis U. J. Health L. & Pol’y 205, 225 (2009).

[lxxxvii] Thomas May, Public Communication, Risk Perception, and the Viability of Preventive Vaccination Against Communicable Diseases, 19 Bioethics 407, 415 (2005).

[lxxxviii] Id.

[lxxxix] Id.

[xc] Id.

[xci] Id.

[xcii] Rubin & Kasimow, supra note 7, at 118-19.

[xciii] The federal government already provides vaccines to children from low-income families. See VFC Vaccines for Children Program (VFC), CDC, http://www.cdc.gov/vaccines/programs/vfc/index.html (last visited Nov. 25, 2013).


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