We ve been avidly following the progress of California s vaccine law (see here and here) and we are pleased to note that it is slated to take effect in 2016. But it will be challenged, of course by dedicated anti-vaxxers, unwilling to abide by the clear legislative vote last month. As noted in a recent perspectives essay in the New England Journal of Medicine, there likely will be challenges based on several principles.
Lawyers Michelle M. Mello, J.D., Ph.D., David M. Studdert, L.L.B., Sc.D., and Wendy E. Parmet, J.D. describe the history of the law, attributing its passage to several factors: legislators resisted the organized anti-vaccine lobby s pressure against the bill; data showing the doubling of so-called personal-belief exemptions in the state since 2007; the Disneyland measles outbreak emphasized the importance of herd immunity; and bill proponents focused on the risks to medically fragile children who could not receive vaccines from such loss of herd immunity which takes exemptions out of the category of a purely personal choice.
The authors went on to describe the anticipated challenges to the law. First, that lack of religious exemptions violates First Amendment right to free exercise of religion. However, they cite past Supreme Court decisions that, for example, religious freedomdoes not include liberty to expose the community or the child to communicable disease.
Another possible challenge might be that the law violates a child s right to education but at least one state decision (in New York) found that the right to attend public schools may be limited by restrictions and limitations in the interest of the public health.
In spite of these possible legal challenges, the authors wrote that the real obstacle will be enforcement of the law. At present, school administrators and day-care directors will be responsible for ascertaining students vaccination status which possibly means they will have to act against their own interests. Further, the authors are concerned that some medical providers will provide bogus medical exemptions.
While these concerns have some legitimacy, the authors hope California's legislative victory may embolden other states to eliminate philosophical and religious exemptions or increase the barriers to obtaining them.
ACSH s Senior Nutrition Fellow, Dr. Ruth Kava, says Certainly proponents of public health should applaud California s new law. It is unconscionable, however, that only three states (California, Mississippi and West Virginia) have limited vaccine exemptions to approved medical ones. It s well past time for the other 47 to follow suit and have their citizens step into the modern era of disease prevention.