Measles is no joke, y'all. It's highly contagious, can cause severe and long-term complications, and even death. I hear you though, bodily autonomy and autism are very serious topics as well. This is the first volume of Southern Fried Public Health Law, so I'll walk y'all through what public health law is; explain herd immunity, epidemiology, and their relation with the law; philosophical and religious exemptions to vaccination laws; and potential legal liability for not vaccinating.

What is Public Health Law?

The traditional goal of public health, to promote population health and prevent disease, depends in large part on actions taken by local, state, and federal health departments. Public health law traces its roots back to Jacobson v. Massachusetts, 197 U.S. 11 (1905).

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Y'all know how to read legal opinions now, but I'll go ahead and give you a summary. There was a smallpox outbreak in 1902 and more than 2000 cases in Massachusetts at the time of Jacobson. The law at the time was that board of health may enforce vaccination if they deemed necessary and there was a $5 penalty for noncompliance. Henning Jacobson refused both the vaccination and the penalty fee. The Court rejected Jacobson's claim that the Fourteenth Amendment gave him the right to refuse vaccination and held that the law was a legitimate exercise of the state's police power to protect the public health and safety of its citizens.* Local boards of health determined when mandatory vaccinations were needed, thus making the requirement neither unreasonable nor arbitrarily imposed.

This police power is the cornerstone of public health law and is still used today. Police power is "broad discretion required for the protection of public health,"[1] and also includes laws that exclude unvaccinated children from school. Note that the federal government does not have police powers—this is reserved for the states.

In addition, the state has parens patriae[2] power to asserts authority over child welfare or people who in some way can't take care of themselves. Under parens patriae, the state may act in the general interest in well-being and may "restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor, and in many other ways."

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With the states as the primary actors, the federal government has a limited, albeit increasing, role in public health. However, the individual rights guaranteed by the Constitution limit federal, state, and local laws and actors. Our government and laws operate by balancing protection of individual rights with the need to protect its citizens' health. With that in mind, there are of course religious and philosophical exemptions to vaccination mandates. However, there is currently no constitutional right to religious exemption, and court decisions are mixed as to whether religious exemptions are constitutional.

What is this "Tragedy of the Commons" and what's it got to do with measles?

The Tragedy of the Commons is an economic theory explained by Garrett Hardin. Imagine a communal pasture everyone can use and outside of the common pasture was land owned by individual farmers. In Hardin's eyes, it is rational for the herdsmen to continue to put one more cow out into the common pasture instead of on their own land because the herdsman are sharing the negative externalities (the effects of over-grazing) with the community. Eventually there are too many cows on the land and the grass becomes over-grazed so that no one can use it. This is the tragedy of the commons—the herdsmen are "locked into a system that compels him to increase his herd without limit—in a world that is limited." Hardin recognizes that it is difficult to legislate temperance, unlike prohibition, and additionally that the commons, "if justifiable at all, is justifiable only under conditions of low-population density." Ultimately, the only way to fix tragedy of the commons is through altruism and considerations for the needs of society as a whole. Which brings us to herd immunity.

Herd immunity means that non-immunized persons or other animals may be protected when a certain level of immunity is reached in the population. Vaccination laws as well as rates vary by state and locality, and in some places "vaccination rates lower than are needed for herd immunity."

Epidemiology is the public health science that studies health and disease in populations and the application of this knowledge is used to control health problems and the distribution of disease. Epidemiological methods were used to increase immunization rates and has eradicated two diseases: smallpox and rinderpest. Measles was declared eliminated the United States in 2000, however in places with lower immunization rates we're beginning to see an increase in outbreaks.

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Due to high vaccination rates, around 90% MMR vaccine coverage among children, there is high population immunity against measles. Immunization rates might need to be as low as 80% to prevent outbreaks, but there are also recommendations for up to 92-95% of Americans be vaccinated against measles to protect against outbreaks. However, coverage varies at the local level, which means that there tends to be more unvaccinated children clustered together. Outbreaks tend to happen when the vaccination rates dip in communities, and in many places where this is happening it is due in large part to philosophical exemptions to the immunization laws.

Philosophical exemptions: What if I believe vaccines cause autism?

You're always free to believe anything you want, bless your heart. That's what makes America so great. But, there are also laws in place to protect public health. All states have requirements for vaccinations before entering kindergarten, however 19 allow exemptions for philosophical or religious reasons.

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The problem with exemptions is that it reduces the number of immunized people, and as I explained above, that can affect the local community if the immunization rate dips too low and an outbreak occurs. This is the main issue with philosophical and religious exemptions to these laws; even if you believe something with all your heart, you can still be empirically incorrect and that can have consequences outside of your control that can seriously affect, harm, or kill others. In the case of incredibly infectious diseases like measles, you can be potentially putting other people at risk. Other people in your community, like babies that are too young to be vaccinated, people with compromised immune systems who cannot be vaccinated, and people for whom their vaccination doesn't work or has lapsed are put at high risk by low immunization rates.

For those concerned about the risks of vaccines causing autism, sip some sweet tea and check out this video by Dr. Aaron Carroll of The Incidental Economist, Vaccines Don't Cause Autism: Healthcare Triage #12:

So what about being held legally liable?

States put in place immunization laws to protect the health of its citizens. In cases when someone is exempted from the law, potential liability could arise if harm is caused. Legal liability for harm caused by infectious diseases is nothing new; "Courts have long held that individuals with hazardous, contagious diseases have a legal duty to protect others from the danger of infection." Furthermore, epidemiological methods can be used to trace the source of the infection to prove causation that would hold up in a court of law. Ya'll can find a full explanation of how one can be held civilly or criminally liable here.

It's possible that we'll see a rise in civil, and potentially criminal, cases after these recent outbreaks. In addition, if cases are brought, the risk of litigation have a chilling effect on exemptions and thus could begin to increase the vaccination rate in areas where it has dropped.

In conclusion…

Low immunization rates cause a tragedy of the commons issue that is especially problematic in urban or other close-knit communities where those not immunized are put at risk by the low rates. While the state has the power to enforce immunizations, providing philosophical and religious exemptions has caused the immunization rates to drop low enough in some communities that herd immunity isn't maintained and outbreaks are occurring. This is serious, ya'll.

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Ultimately, if you're considering exempting from vaccinating your children, consider not only the entirety of your personal and familial situations but your community as well. Become well-versed in your state laws and local community practices in order to help evaluate your family's and your community's risk. Vaccinate your children if at all possible, bless your heart.

Come back in a few weeks for Southern Fried Public Health Law Volume 2: PPACA Primer and King v. Burwell.

This article has been prepared by Elle Woods & Associates and the Powder Room for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

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You can contact us at ElleWoodsandAssociates@gmail.com.


*Editor's note: A little point of Constitutional law. Some people may be wondering, why was the suit brought under the Fourteenth Amendment, rather than the First Amendment (which governs religious freedom). The reason is that this suit was brought to challenge a state law, and in a series of cases the Supreme Court has held that the Privileges and Immunities Clause of the Fourteenth Amendment extended the rights contained in the Bill of Rights (Amendments one through ten) to cover state laws. You can read a good summary of incorporation of the federal constitution as it is applicable to the states here.

[1] Yazoo & M.V.R.R. Co. v. Clarksdale, 257 U.S. 10, 16 (1921).

[2] Parens patriae is a latin term meaning "parent of his or her country." In modern law, it embodies the concept that "the state [is] regarded as a sovereign" and is used to refer to "the state in its capacity as provider of protection to those unable to care for themselves." Blacks Law Dictionary.