Limiting vaccine exemptions benefits all

Measles is back in California. The California Department of Health reported 36 cases as of March 21, most of them in the unvaccinated (including at least 14 in people intentionally unvaccinated). Last year we had three cases of measles.

Measles is not a mild disease. Even today, it can cause brain damage, deafness, pneumonia and even death.

Europe - modern, developed Europe - faced a measles outbreak in recent years, mostly because of unsubstantiated fears about vaccine safety. The outbreak led to deaths, encephalitis (brain injury), pneumonia and other complications.

And it's preventable. We have an extremely effective vaccine: 99 percent of those who get two doses of the combined measles-mumps-rubella vaccine (MMR) are protected against measles. It's a very, very safe vaccine, despite claims that it causes autism (It does not. Multiple studies in different countries showed that again, and again, and again.)

By choosing not to vaccinate parents are leaving children at risk of this disease. These susceptible children may also infect others, for example, those too young to vaccinate, those too ill, or the extremely small minority the vaccine fails to protect.

Pertussis is also prevalent, though that story is more complicated. Part of the reason for the outbreak is that immunity from the current vaccine (also a combined vaccine - diphtheria, tetanus and pertussis), while reasonably good in the short term, wanes faster than scientists expected. But still, the unvaccinated are dramatically more at risk, and communities with low vaccination rates more vulnerable. This year in California, a baby died from pertussis.

Anti-vaccine misinformation has direct costs in suffering, and sometimes lives.

Like most states, California requires certain vaccines - including DTaP (diphtheria, tetanus and pertussis) and MMR - before children can attend public school. And like most states, California offers exemptions from that requirement. It offers a medical exemption: If a child has a medical condition that makes all or some vaccines dangerous to her, it makes sense not to vaccinate that child. She will then depend on those around her to vaccinate and offer her the protection of herd immunity. If enough people in a community vaccinate, the virus cannot establish itself. The intentionally unvaccinated will be putting this vulnerable child at risk.

California also offers a personal belief exemption. Until recently, that exemption was extremely easy to get: A parent just had to file a letter or affidavit claiming some or all immunizations were "contrary to his or her beliefs" (Health and Safety Code, Section 120365). As of January, a parent must also obtain the signature of a health practitioner attesting that the practitioner explained to the parent the risks and benefits of vaccines and the risks of vaccine preventable diseases. The goal is twofold: to eliminate exemptions of convenience - so parents who are not actually opposed to vaccines but busy, or acting from inertia, will not get an exemption just because submitting the letter is easier; and to give doctors a chance to counter misinformation a parent may have received from other sources. Fewer exemptions because of misinformation or convenience, fewer outbreaks. That was the hope.

However, in a signing statement attached to the bill Gov. Jerry Brown said: "I will direct the department to allow for a separate religious exemption on the form. In this way, people whose religious beliefs preclude vaccinations will not be required to seek a health care practitioner's signature." The final form allowed people to skip the discussion with a doctor if they were willing to check the box that said that they are "a member of a religion which prohibits [them] from seeking medical advice or treatment from authorized health practitioners."

This addition is problematic for at least two legal reasons and two policy ones. First, the governor does not have the authority to independently create an exemption from the statute. There is a legislative process in California that involves both branches of the legislature and the governor. Unilateral action by the governor is not a substitute to that process. The new religious exemption did not follow that process.

Second, the exemption requires membership in an organized religion. But almost every court that addressed the issue in the U.S. struck down exemptions that are limited to organized religions. See, e.g., Dalli v. Bd. of Educ., 267 N.E.2d 219, 222-23 (Mass. 1971); Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F. Supp. 81, 87-88 (E.D.N.Y. 1987). A court in Kentucky went the other way, but the legislature since removed the organized religion requirement, and it is doubtful it would stand today. Courts struck these down because they discriminate in favor of members of organized religions. That's still true.

The obvious policy reason is that allowing this loophole can increase the number of exemptions and the risk of outbreak. Why invite measles back in? But the other reason is that no mainstream religion actually opposes vaccines, and there is reason to think most those who use a religious exemption actually oppose vaccines for non-religious reasons. Providing a religious loophole may lead people to lie and claim a religious reason. Why encourage that?

Brown may have believed that a religious exemption is constitutionally required. But it's not. The U.S. Supreme Court in Prince v. Massachusetts, made it clear that: "The 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." No court - state or federal - that addressed this issue ever required a state to offer a religious exemption. Most recently, the 4th U.S. Circuit Court of Appeals said that even using the strict scrutiny standard, it's constitutional for West Virginia not to offer a religious exemption. Workman v. Mingo Cnty. Bd. of Educ., 419 F. App'x 348 (4th Cir. 2011).

Parental rights also do not mandate an exemption under our jurisprudence. Parental rights are important, but they are not the end all. Children have rights, too, as does the public. The first to suffer from the decision to not vaccinate are the unvaccinated children themselves, left at higher risk of diseases that can kill and disable. When parental choices put their children at risk the state may intervene and, using its parens patriae power, act to protect those children. Similarly, the state may regulate behavior to protect the public health, up to quarantining those who may infect others. This power easily extends to requiring vaccination. Even in Wisconsin v. Yoder, 406 U.S. 205 (1972) - a decision offering very strong protection to at least one type of parental decision - an exception was carved allowing the state to regulate health and welfare, even if it meant restricting parental freedom and freedom of religion.

In short, nothing requires the state to offer a religious exemption, or any non-medical exemption. The governor's addition was illegal, and probably unconstitutional. It may undermine the goal of the change in the law, and leave children at risk of disease. The health department should remove the religious clause and allow the law to work as intended.

In fact, if exemptions rates do not fall, it is appropriate, and probably desirable, for California to tighten its exemptions even more. Children deserve better than to be left exposed to preventable diseases.