Do Parents Who Choose Not to Vaccinate Their Children Open Themselves Up to Liability?

The Supreme Court of the United States, in Troxel v. Granville,[1] reiterated the Constitutional protection granted to “the interest of parents in the care, custody, and control of their children.”[2] The Court described this liberty interest as being “perhaps the oldest of the fundamental liberty interests recognized by [the] Court.”[3] The Supreme Court explained that a fit[4] parent’s decisions should be given deference because there is a presumption that fit parents make decisions in their children’s best interests.[5] Any court that presumes otherwise fails “to provide [] protection for the [parent’s] fundamental constitutional right to make decisions concerning the rearing of [their] own [children].”[6] So, if there is a fundamental constitutional right to parent, how can this be resolved with parents who choose not to vaccinate their children, ultimately affecting society as a whole?[7] Should members of the community suffer at the hands of parental deference?

Vaccinations have caused disagreement in society for decades.[8] Today, some states grant exemptions allowing people immunity from receiving required vaccinations.[9] As of 2017, “Forty-seven states permit[ted] vaccine exemptions on religious grounds, and 18 states allow[ed] exemptions for personal or philosophical reasons.”[10] However, some states have changed the exemptions allowed to citizens, promoting vaccinations in the process.[11] This has been done by “eliminating personal belief exemptions for school entry, adding or strengthening vaccination requirements, and promoting better education about vaccines.”[12]

In 2015, both California and Vermont removed personal belief exemption options.[13] California faced scrutiny when it repealed the personal belief exemption, but the law was found to be constitutional.[14] Other states, in an effort to promote vaccinations, have invoked a required education program for parents who exempt their children from receiving vaccinations.[15] Arizona, Arkansas, Michigan, Oregon, Utah, Vermont and Washington require parents to undergo educational programs about the risks of foregoing and benefits of undergoing the vaccination process.[16] Utah has furthered its vaccination initiative by requiring parents to renew their child’s vaccination exemption annually.[17] States also work alongside colleges and universities to implement a higher education institution’s vaccination policy.[18]

The Federal Government has also taken action to encourage vaccinations.[19] Programs like The Vaccines for Children Program (“VCF”) have been implemented to help children receive vaccines at little cost.[20]

Intercontinentally, countries are cracking down on parents who choose not to vaccinate their children.[21] Australia and Italy have begun imposing fines as a punishment.[22] Both countries have based their choice to fine on the extensive evidence in favor of vaccines; the most notable example being the eradication of smallpox.[23] Germany, France and Romania have also passed vaccine-related laws.[24] German kindergarten providers are required to report parents who do not receive vaccination counseling after foregoing vaccinations for their children and health ministries have the ability to fine parents who refuse vaccinations up to $3,000 (€2,500).[25] Romanian parents have to prove their child is vaccinated before the child can attend school, which is similar to the protocol of most American states, colleges and universities.[26]

A researcher of infectious diseases at Baylor College, Peter Hotez, is of the opinion that American parents do not need the same kind of rigidity in vaccine-related laws, at least not until and “unless there is an outbreak of serious epidemic requiring a public health emergency.”[27] However, in May 2017, there was an outbreak of measles in Minnesota; “the state had seen more measles cases in the first five months of 2017 than the entire country had experienced in all of 2016.”[28] According to the Center for Disease Control (“CDC”), in 2016 about 73.8% of Minnesotan children aged 19-35 months were covered for the combined 7-vaccine series.[29] Minnesota did not have the lowest vaccination percentage yet had an alarming measles outbreak.[30] Thankfully, the states with vaccinations rates lower than Minnesota’s did not also have a measles outbreak. However, Peter Hotez’s school of thought, to wait for a bigger outbreak before taking action, is concerning, especially because Minnesota is an averagely vaccinated state.

The most recent vaccine-related media frenzy culminated in Michigan, where the media headlines suggested a mother was jailed for simply failing to vaccinate her child.[31] However, the mother was actually jailed after failing to comply with a court order in which she had previously agreed to vaccinate her child as part of a settlement with her ex-husband.[32] An American parent has yet to be jailed for failing to vaccinate their child.[33] However, some pediatricians have started calling Child Protective Services (“CPS”) on parents who refuse to vaccinate.[34] The doctors who call CPS do so in the belief that failing to vaccinate children is medical abuse and neglect.[35]

The American Academy of Pediatrics policy only requires that pediatricians call CPS if the child is in immediate danger from the failure to vaccinate.[36] They warn that involving CPS simply for the failure to vaccinate may undermine the parent-doctor relationship, which could result in more harm than good for a child.[37] Whether failure to vaccinate is, indeed, medical neglect of a child has yet to be determined by the American legal system.[38]

In January 2017, Doug Opel, a pediatrician and professor at the University of Washington School of Medicine, and Efthimios Parasidis, attorney and associate professor of Law and Public Health at the Ohio State University, published an article discussing the medical neglect argument.[39] Of the nine cases where parents were brought before a judge on grounds of medical neglect, five were in states that do not allow religious or philosophical exemptions to vaccination.[40] Where religious exemptions were claimed, the analysis was then based on the validity and legitimacy of those claims.[41] Doctor Opel suggests that pediatricians only use CPS as another authoritative figure to explain the benefits of vaccination to hesitant parents, absent immediate danger to the child.[42]

The disconnect lies between a parent’s right to make decisions on their child’s behalf and the inevitable danger to society by having unvaccinated citizens.[43] While most states do not allow children to attend school without vaccines, parents who do not vaccinate have begun homeschooling their children as a way around the issue.[44] However, there is still an argument to be had about whether that remains in a child’s best interests. Children who are not vaccinated will most likely be social outcasts. Parents will not want their children to be in the proximity of an unvaccinated child. Not to mention, homeschooled, unvaccinated children are less likely to be exposed to proper socialization. However, with Troxel and its constitutional underpinnings, the line has been drawn in the sand. A few questions still remain. Should the failure to vaccinate be more harshly punished? Would that impede “the interest of parents in the care, custody, and control of their children”? Does the greater good of society override a fundamental constitutional interest?

[1] 530 U.S. 57, 66 (2000).

[2] Id.

[3] Id. (citing and explaining precedential decisions relating to this liberty interest: Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Pierce v. Society of Sisters, 268 U.S. 534-535 (1925); Prince v. Massachusetts, 321 U.S. 158 (1944); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Parham v. J.R., 442 U.S. 584, 602 (1979); Santosky v. Kramer, 455 U.S. 745, 753 (1982)).

[4] Id. at 69. (quoting “Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. See, e.g., Flores, 507 U.S., at 304, 113 S.Ct. 1439.”)

[5] Id.

[6] Id. at 70.

[7] What Would Happen if We Stopped Vaccinations?, Centers for Disease Control and Prevention, (June 29, 2018), www.cdc.gov/vaccines/vac-gen/whatifstop.htm.

[8] CNN Library, Vaccines Fast Facts, CNN, (October 22, 2018), www.edition.cnn.com/2015/07/20/health/vaccines-fast-facts/index.html (explaining Andrew Wakefield’s 1998 study which wrongly concluded that the Measles, Mumps and Rubella (“MMR”) immunizations were linked to childhood autism. The study was later declared unethical as Wakefield had been paid by corrupt lawyers who planned to sue vaccination companies on behalf of parents with children diagnosed with autism).

[9] Id. (listing the vaccination exemptions as medical, religious or philosophical).

[10] Erik Skinner, Vaccination Policies: Requirements and Exemptions for Entering School, NCSL LegisBrief, December 2017, Vol. 25, No. 48,  www.ncsl.org/documents/legisbriefs/2017/lb_2548.pdf.

[11] Id.

[12] Id.

[13] Id.

[14] Bob Egelko, California’s mandatory-vaccination law survives court test, San Francisco Chronicle, (Jul. 19, 2018), www.sfchronicle.com/health/article/California-s-mandatory-vaccination-law-survives-13047905.php (repealing the personal belief exemption did not violate freedom of religion).

[15] Erik Skinner, Vaccination Policies: Requirements and Exemptions for Entering School, NCSL LegisBrief, Dec. 2017, Vol. 25, No. 48,  http://www.ncsl.org/documents/legisbriefs/2017/lb_2548.pdf.

[16] Id.

[17] Id. (this can be done online, but must be completed on an annual basis).

[18] Id. (presently, most colleges and universities require vaccination for enrollment, registration, etc.).

[19] Protect Your Baby with Immunizations, Centers for Disease Control and Prevention, (Apr. 23, 2018), www.cdc.gov/features/infantimmunization/index.html.

[20] Id. (explaining that children are eligible if they are under 19 and: American Indian or Alaska Native, Medicaid-eligible, Uninsured, Underinsured (i.e. “they may have insurance, but it [does not] cover any vaccines or it does not cover certain recommended vaccines for children” under 18 years of age).

[21] Kate Sheridan, Is it A Crime to Avoid Vaccines? People Who Refuse are Being Punished With Jail and Job Loss, Newsweek, (Dec. 5, 2017), www.newsweek.com/sending-parents-jail-refusing-vaccinate-doesnt-work-say-experts-730439.

[22] Id. (Australia is imposing a $4,200 ($5,500 AUD) fine on daycare providers who accept unvaccinated children and Italy began fining parents who failed to vaccinate in 2018).

[23] Id.

[24] Julia Belluz, The global crackdown on parents who refuse vaccines for their kids has begun, Vox, (February 19, 2018), /www.vox.com/science-and-health/2017/8/3/16069204/vaccine-fines-measles-outbreaks-europe-australia.

[25] Id.

[26] Id.

[27] Id.

[28] Nicole Wetsman, Is Skipping a Child’s Vaccines Medical Neglect?, proto, (Aug. 3, 2017), www.businessinsider.com/is-skipping-a-childs-vaccines-medical-neglect-2017-8?r=US&IR=T (there were 79 cases of measles in Minnesota between January and May of 2017).

[29] Data table for Figure 12. Vaccination coverage for combined 7-vaccine series among children aged 19-36 months, by state: United States, 2016, Centers for Disease Control and Prevention, (last visited Jan. 5, 2019), www.cdc.gov/nchs/data/hus/2017/fig12.pdf (“The combined 7-vaccine series consists of 4 or more doses of either the diphtheria, tetanus toxoids, and pertussis vaccine (DTP), the diphtheria and tetanus toxoids vaccine (DT), or the diphtheria, tetanus toxoids, and acellular pertussis vaccine (DTaP); 3 or more doses of any poliovirus vaccine; 1 or more doses of a measles-containing vaccine (MCV); 3 or more doses or 4 or more doses of Haemophilus influenzae type b vaccine (Hib) depending on Hib vaccine product type (full series Hib); 3 or more doses of hepatitis B vaccine; 1 or more doses of varicella vaccine; and 4 or more doses of pneumococcal conjugate vaccine (PCV). Data from U.S. territories were not included in the national estimates. Data for the map are displayed by a modified Jenks classification for the 50 U.S. states and D.C., which creates categories that minimize within-group variation and maximize between-group variation. Data are for the civilian noninstitutionalized population.”).

[30] Id. (the state with the lowest percentage of coverage for the 7-vaccine series was Oregon with 58.1%).

[31] Lindsey Bever and Kristine Phillips, The Mother Jailed for refusing to vaccinate her son says she would ‘do it all over again,’ The Washington Post, (Oct. 13, 2017), www.washingtonpost.com/news/to-your-health/wp/2017/10/12/a-mother-was-jailed-for-refusing-to-vaccinate-her-son-now-shes-outraged-hes-been-immunized/?utm_term=.de475857fba1.

[32] Id.

[33] Id.

[34] Nicole Wetsman, Is Skipping a Child’s Vaccines Medical Neglect?, proto, (Aug. 3, 2017), www.protomag.com/articles/skipping-childs-vaccines-medical-neglect.

[35] Id.

[36] Id.

[37] Nicole Wetsman, Is Skipping a Child’s Vaccines Medical Neglect?, proto, (Aug. 3, 2017), www.protomag.com/articles/skipping-childs-vaccines-medical-neglect.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] What Would Happen if We Stopped Vaccinations?, Centers for Disease Control and Prevention, (June 29, 2018), www.cdc.gov/vaccines/vac-gen/whatifstop.htm.

[44] Alberto Guibilini, Vaccine Refusal is Like Tax Evasion, The University of Oxford Practical Ethics, (Oct. 31, 2017), www.blog.practicalethics.ox.ac.uk/2017/10/vaccine-refusal-is-like-tax-evasion/.