By Dorit Rubinstein Reiss and Arthur Caplan
In 2002, the Centers for Disease Control and Prevention declared measles eliminated in North America. In 2019, it came back – with a vengeance. By Feb. 21, there were 159 cases in 10 states. New York is the national leader in measles outbreaks. As of Feb. 19, there had been 90 measles cases in New York City. Rockland County has had 138 measles cases.
What to do? California, after a major outbreak at Disneyland caused by low levels of vaccination, prohibited nonmedical vaccine exemptions, including religious exemptions. That strategy has worked. Vaccination rates bounced back up.
New York permits parents to opt out of vaccinations for their kids on religious grounds. That should end. Stronger school mandates that don’t allow exemptions except for reasons of health mean fewer people get exemptions from vaccines and that means honoring children’s rights to be healthy, protecting those who can’t get vaccinations due to immune disorders and fewer outbreaks of a highly contagious disease.
Some of our state legislators believe that tougher vaccine mandates that do not permit religious exemptions are neither ethical nor legal.
Ethically their reasoning is flawed. And the long history of vaccine-mandate jurisprudence shows that law backs protecting children and the public health over claims that religious views prohibit vaccination – a view that almost no religion holds.
Opponents of restricting exemptions claim that school mandates violate parental rights. But children have rights too. There is no absolute, inviolate right to leave children unprotected from serious disease when risks of vaccines are absolutely small and much smaller than the risks of not vaccinating.
We would not grant religious exemptions for putting infants in car seats or not having children wear bicycle helmets. Morally, children’s rights to be free from easily preventable disease ought to come first.
As for the legality of eliminating non-health exemptions, for over 100 years, state and federal courts reviewing state immunization mandates have found them constitutional. Protecting public health has always been a core state function: states have broad powers to act for public health.
In Jacobson v. Massachusetts (1905) the Supreme Court upheld a smallpox vaccine mandate and made it clear that individual rights can be limited to protect the public health.
Measles should not exist in the U.S. New York should follow California’s lead and enact school mandates that eliminate religious exemptions and put children’s health first.
Dorit Rubinstein Reiss is a professor UC Hastings College of Law; Arthur Caplan is director of the Division of Medical Ethics at NYU School of Medicine.