THE PATH IS CLEARED: A GROWING BODY OF CASE LAW UPHOLDS STATES’ REMOVAL OF NON-MEDICAL VACCINATION EXEMPTIONS; MINNESOTA SHOULD BE NEXT
By: Meredith Gingold, Volume 104 Staff Member
So far in 2019, two events have taken place: (1) more than 1,200 cases of measles have been reported in the United States, in 31 states so far, and (2) 20 states have introduced legislation to expand non-medical exemptions for vaccines or to require doctors to provide patients with more information on the risks of vaccines. These trends are almost certainly connected, as according to the Centers for Disease Control and Prevention (CDC), three-quarters of the measles cases are linked to unvaccinated individuals. Due to a high rate of contagiousness, measles requires a high rate of vaccination, likely between 93 and 95%. However, in many states, due to non-medical vaccination exemptions, that percentage is far below the recommended rate and falling. This Post will examine proposed legislation eliminating non-medical vaccination exemptions in Minnesota and offer a prediction for its success based on similar laws that have been upheld in New York, California, Mississippi, and West Virginia.
I. NON-MEDICAL VACCINATION EXEMPTIONS & RECENT PREVENTABLE DISEASE OUTBREAKS
It has long been settled law that states may require school children to complete their vaccinations before starting school. All states and Washington, D.C. have vaccination requirements for children who start school, and all states and Washington, D.C. allow medically necessary exemptions to these requirements. However, all but five states allow for non-medical exemptions, including both philosophical and religious objections to vaccinations. These non-medical exemptions matter because in the majority of states that allow exemptions, the non-vaccination rate is climbing. The anti-vaccination movement is powerful because it crosses political boundaries: at a rally in Oregon, Democrats and Republicans united against a bill that would remove non-medical exemptions. Those who oppose vaccinations cite personal freedom and individual rights as a reason to not vaccinate their children. Though these reasons may be compelling, they create situations ripe for preventable disease outbreaks.
For example, two counties in Minnesota, Wadena and Renville, are home to populations where 10% and 11% respectively of kindergarteners have non-medical exemption for all shots required by state school immunization laws. The Minnesota statewide average for non-medical exemptions is around 2%, but the distribution varies widely. Further, anti-vaccination sentiment is present in Minnesota government: key government leaders espouse immunization doubts, and vaccination skeptics were recently appointed to a new state autism council. These factors presented a very inviting scenario for a preventable disease to spread.
Minneapolis experienced a measles outbreak in 2017. During that outbreak, 71 of the 79 cases were among unvaccinated individuals. The Somali community was hit particularly hard, experiencing 64 of the 79 cases. Among Somali-Minnesotan 2-year-olds, the vaccination rate for measles was around 42%. This Post does not intend to blame Somali-Americans; in fact, the Somali-American community was targeted by anti-vaccine groups and advocates. This targeting led to a higher rate of Somali-American parents suspecting that the measles vaccine causes autism.Not everyone can be vaccinated, either because of age or other health conditions. Thus, encouraging vaccinations is incredibly important because people who cannot be vaccinated are placed at increased risk of contracting diseases which can result in life-long disabilities or death. Non-medical vaccination exemption laws take away from state messaging around the importance of vaccination and lend support to anti-vaccination campaigns by providing a legitimate means for avoiding this important health tool.
II. PROPOSED LAWS
A. Movement Toward Fewer Non-Medical Vaccination Exemptions
There are many ways that states and state health agencies can fight back against flagging vaccination rates. For example, Dr. Peter Hotez, dean of Baylor’s College of Medicine, suggests using public service campaigns to combat anti-vaccination materials circulating over social-media, targeting and addressing predation of specific groups such as the Orthodox Jewish community in New York and the Somali community in Minnesota, and promoting vaccinations. As a part of this effort, many states are attempting to cut back on the non-medical exemptions their statutes allow. After an outbreak of measles in Disneyland, California eliminated its non-medical exemptions. A similar law was proposed in Oregon after it, too, experienced a measles outbreak. Other states are joining this initiative as well– to date, five states have eliminated non-medical vaccination exemptions: New York, California, Mississippi, Maine, and West Virginia.
B. Minnesota’s Proposed Law
In February of 2019, Minnesota State Senator Chris Eaton introduced Senate Bill 1520, which proposed edits to the language in Minnesota statute surrounding immunizations of school children. Currently, the statute allows exemptions from vaccines for a number of reasons, including a notarized statement signed by a parent or guardian stating conscientiously held beliefs of the child’s parent or guardian that immunizations should not be required. The proposed bill would eliminate the entire section granting exceptions for “conscientiously held beliefs,” but would leave intact other exemptions such as age exemptions, medical exemptions, and exemptions for students attending exclusively online schools. The bill was referred to the Health and Human Services Finance and Policy Committee, but was never reported out – dying there. Though this bill did not come close to passing, it is an important step toward protecting the health of Minnesotans. Further, there is reason for hope. A recent study of 175 vaccine exemption bills between 2011 and 2017 found that the overwhelming majority of bills signed into law (92%) placed limits on vaccine exemptions. This suggests that a future attempt would keep good company and be more likely to succeed.
III. LAWS REMOVING NON-MEDICAL VACCINATION EXEMPTIONS UPHELD
If Minnesota were to remove the non-medical vaccination exemption, that action would likely face challenges similar to those in New York, California, and West Virginia. All of these state courts have upheld their laws, suggesting good fortune ahead for a possible Minnesota law removing non-medical vaccination exemptions.
A. Seminal Jurisprudence
The seminal case in the area of vaccination law is Jacobson v. Massachusetts, in which the Supreme Court rejected a Fourteenth Amendment challenge to a mandatory smallpox vaccination, holding that it was a constitutional exercise of a State’s police power to require vaccinations. The Court rejected the petitioner’s argument that the State unconstitutionally invaded his liberty by providing a fine or imprisonment as punishment for refusing to submit to a compulsory vaccination law. Asserting the general principle that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint,” the Court found that given the increasing prevalence of smallpox in Cambridge, “it cannot be adjudged that the present regulation of the Board of Health was not necessary in order to protect the public health and secure the public safety.” Thus, since 1905, states can require school children to be vaccinated through a constitutional exercise of their police power.
B. New York
On June 13, 2019, the New York State Legislature repealed their provision authorizing non-medical, religious exemptions. By July 10th, plaintiffs had commenced at least one lawsuit challenging the constitutionality and legality of the Legislature’s act. The complaint in F.F. v. State of New York alleges that plaintiffs and the class that they represent hold genuine and sincere religious beliefs against vaccinating their children. The complaint alleges that the children represented in the complaint will not be allowed to attend public or private school unvaccinated, so the plaintiffs requested a preliminary injunction to prevent them from vaccinating their children. The court considered a wide range of evidence in making its decision, including the rising rates of non-medical exemptions in New York, a description of herd immunity, and an analysis of the contagiousness of measles. Regardless of free exercise claims and a state constitutional duty to provide a system of free public schools, the court found that protecting public health, particularly the health of children, is a compelling state interest furthered by the repeal of non-medical exemptions.
C. Mississippi, West Virginia, California, & Maine
F.F. v. State of New York aligns with a long line of cases upholding states’ rights to mandate vaccinations for school children, with or without the absence of non-medical exemptions. As far back as 1979, courts have been upholding vaccination requirements in the face of a ‘lack’ of non-medical exemptions. Courts in West Virginia and California have also heard challenges to their removal of non-medical exemptions to compulsory vaccination of children who attend schools, and the courts have unanimously upheld these removals. These cases raised similar arguments including free exercise of religion, equal protection claims, and due process claims, and each time the court upheld the removal of non-medical exemptions. Mississippi’s removal was mandated by the Mississippi Supreme Court in 1979, and it has not been challenged since. Though the Maine provision has yet to be challenged in court, anti-vaccination groups are gathering signatures to force a “people’s veto” vote in next March’s election. Thus, if Minnesota were to remove non-medical vaccination exemptions, any legal challenge would face considerable out-of-state precedent to uphold the constitutionality of the law.
Through a removal of non-medical vaccination exemptions, Minnesota could further establish its status as a champion of public health. Though the proposed Senate Bill did not gain much traction in the past legislative session, if Minnesota were to pass a law eliminating state non-medical vaccination exemptions, any legal challenge to the bill would be met with a growing body of case law reinforcing states’ rights to put the health of their residents over individual vaccination preferences of parents.
Rachael Zimlich, Combat Anti-Vax Progress with Education and National Support, Contemporary Pediatrics (Oct. 26, 2019), https://www.contemporarypediatrics.com/article/combat-anti-vax-progress-education-and-national-support.
This Post will refer to both religious and philosophical exemptions as non-medical exemptions. States often have different laws in place for each of these, so if even if a state eliminates religious exemptions, they still may have another form of non-medical exemptions in place. The American Academy of Pediatrics, Medical Versus Nonmedical Immunization Exemptions for Child Care and School Attendance, 3 pediatrics 1 (2016), https://pediatrics.aappublications.org/content/138/3/e20162145.
Frances Stevenson, Minn. Senate Looks at Bill that Removes Vaccination Exemptions, Fergus Falls Journal (Mar. 8, 2019, 8:17 PM), https://www.fergusfallsjournal.com/2019/03/minn-senate-looks-at-bill-that-removes-vaccination-exemptions/.
Zimlich, supra note 1.
Sebastian Funk, Critical Immunity Thresholds for Measles Elimination 4 (Oct 19, 2017), https://www.who.int/immunization/sage/meetings/2017/october/2._target_immunity_levels_FUNK.pdf.
In Clark County, Washington, the rate of kindergarten vaccination for measles fell from 96.4% to 84.5% between 2004 and 2017. ASTHO Staff, States Move to Eliminate Non-Medical Exemptions for Vaccinations, ASTHOExperts Blog (Feb 21, 2019, 12:44 PM), http://www.astho.org/StatePublicHealth/States-Move-to-Eliminate-Non-Medical-Exemptions-for-Vaccinations/02-21-19/[hereinafter ASTHO Blog].
See generally NOTE: WHY IS VACCINATION DIFFERENT? A COMPARATIVE ANALYSIS OF RELIGIOUS EXEMPTIONS, 117 Colum. L. Rev. 913, 915 (2017) [hereinafter COMPARATIVE ANALYSIS].
ASTHO Blog, supra note 6.
See, e.g., F.F. v. State of N.Y., 2019 NY Slip Op 29261, ¶ 7 (Sup. Ct.) (2019) (“There are now five states that do not allow religious exemptions to compulsory vaccination of children who attend schools. Beside New York, California, Maine, West Virginia, and Mississippi provide for no religious or other non-medical exemptions from compulsory vaccination laws, and the Court is aware of no cases striking down those states’ laws.”).
See, e.g., Jacqueline K. Olive, Peter J. Hotez, Ashish Damania, & Melissa S. Nolan, The State of the Antivaccine Movement in the United States: A Focused Examination of Nonmedical Exemptions in States and Counties, 15 PLoS Med 1 (2018).
Dirk VanderHart, Amid Measles Outbreaks, States Consider Revoking Religious Vaccine Exemptions, MPRNews (May 7, 2019, 12:08 PM), https://www.mprnews.org/story/2019/05/07/npr-amid-measles-outbreaks-states-consider-revoking-religious-vaccine-exemptions.
Stevenson, supra note 3.
Editorial Board, Minnesota Bill Would Counter Dangerous Vaccine Disinformation, StarTribune (Feb. 19, 2019, 5:39 PM), http://www.startribune.com/minnesota-bill-would-counter-dangerous-vaccine-disinformation/506067652/?refresh=true.
See, e.g., Minnesota Department of Health, Health Officials Declare End of Measles Outbreak, Minnesota Department of Health (Aug 25, 2017), https://www.health.state.mn.us/news/pressrel/2017/measles082517.html.
See generally Owen Dyer, Measles Outbreak in Somali American Community Follows Anti-Vaccine Talks, The British Medical Journal (May 16, 2017), https://www.bmj.com/content/357/bmj.j2378.
Since the outbreak, Minnesota health officials have re-evaluated their strategies for encouraging vaccination rates among Somali-Americans, and the rate has increased 16% since 2017.Catharine Richert, A Year after Severe Outbreak, More Somali-American Kids Are Vaccinated against Measles, MPRNews (Aug. 24, 2018, 12:32 PM), https://www.mprnews.org/story/2018/08/24/measles-vaccinated-somali-american-children-up-more-outbreak.
Who Should NOT Get Vaccinated with these Vaccines?, Centers for Disease Control and Prevention (Aug. 15, 2019), https://www.cdc.gov/vaccines/vpd/should-not-vacc.html.
See, e.g., F.F. v. State of N.Y., 2019 NY Slip Op 29261, ¶¶ 5-6 (Sup. Ct. 2019).
Zimlich, supra note 1.
ASTHO Blog, supra note 6.
VanderHart, supra note 12.
The Association for State and Territorial Health Offices put together this summary of proposed and recently-enacted legislation surrounding non-medical vaccination exemptions:
“In 2015, following an outbreak of measles linked to visitors at a Disney amusement park, California eliminated its non-medical exemptions. That same year, Vermont eliminated its philosophical belief exemption, allowing its religious exemption to remain in place. The most recent measles outbreaks are spurring similar state legislative activity. For example, a bill to remove the personal belief exemption for the measles, mumps, and rubella vaccine was reported favorably out of the Washington state house chamber (HB 1638). In addition, a bill to eliminate the state’s personal belief exemption for all school vaccinations received a hearing in the state senate (SB 5841). Four years after eliminating the philosophical exemption, a bill in Vermont would also remove the state’s religious exemption (H 238). Many other states are also considering bills to eliminate non-medical exemptions to school vaccination requirements, including Arizona (HB 2162), Iowa (HF 206), Maine (LD 798), Minnesota (SF 1520), New Jersey (A 3818), New York (S 2994 and A 2371), and Oregon (HB 3063).”
ASTHO Blog, supra note 6.
National Conference of State Legislatures, States with Religious and Philosophical Exemptions from School Immunization Requirements, National Conference of State Legislatures (June 14, 2019), http://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx.
Stevenson, supra note 3.
Minn. Stat. Ann. § 121A.15(3)(d) (2019) (“If a notarized statement signed by the minor child’s parent or guardian or by the emancipated person is submitted to the administrator or other person having general control and supervision of the school or child care facility stating that the person has not been immunized as prescribed in subdivision 1 because of the conscientiously held beliefs of the parent or guardian of the minor child or of the emancipated person, the immunizations specified in the statement shall not be required. This statement must also be forwarded to the commissioner of the Department of Health.”).
S.F. 1520, 91st Leg., (Minn. 2019).https://www.revisor.mn.gov/bills/text.php?version=latest&session=ls91&number=SF1520&session_year=2019&session_number=0.
S.F. 1520 Status in the Senate for the 91st Legislature, Office of the Revisor of Statutes (2019), https://www.revisor.mn.gov/bills/bill.php?b=Senate&f=SF1520&ssn=0&y=2019.
Neal D. Goldstein, Joanna S. Suder, & Jonathan Purtle, Trends and Characteristics of Proposed and Enacted State Legislation on Childhood Vaccination Exemption, 2011-2017, 109 American Journal of Public Health, 102, (2019) https://ajph.aphapublications.org/doi/10.2105/AJPH.2018.304765.
F.F. v. State of N.Y., 2019 NY Slip Op 29261, ¶ 7 (Sup. Ct.) (2019) .
See generally COMPARATIVE ANALYSIS, supra note 7 at 925–26 (offering a thorough analysis of the Jacobson case).
Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).
Id. at 28.
F.F. v. State of N.Y., 2019 NY Slip Op 29261, ¶ 2 (Sup. Ct. 2019).
Id. at ¶ 1.
Id. at ¶ 26.
Id. at ¶ 10.
Id. at ¶ 4 (“Dr. Blog reports that the number of children entering schools with a valid religious exemption rose from 14,059 in 2010-2011 to 26,627 in 2017-2018. Meanwhile, the number of children entering schools declined from 3,437,226 in 2010-2011 to 3,348,544 in 2017-2018.”).
Id. at ¶ 5 (“Dr. Blog explained the concept of “herd immunity,” also called “community immunity,” which historically has been considered achieved when 95% of the population has been immunized. She stated that one dose of the measles vaccine is about 93% effective in preventing the disease if exposed; two doses are about 97% effective in preventing the disease. Although 3% of those vaccinated are still at risk of getting the disease, the symptoms will be milder, and they are less likely to spread the disease.”).
Id. at ¶ 4 (“The State defendants’ opposition includes an affidavit from Dr. Debra Blog, Director of Epidemiology in the New York State Health Department. She explains that measles, an airborne viral disease, is one of the most contagious diseases known, with 90% of susceptible people developing the disease following exposure.”).
Id. at ¶ 9.
Brown v. Stone, 378 So. 2d 218 (Miss. 1979) (upholding a state statute making school attendance conditional on immunization and finding the exemption for religious beliefs unconstitutional because it required school children to be vaccinated and at the same time exposed children to the hazard of attending school with unvaccinated children).
F.F. v. State of N.Y., 2019 NY Slip Op 29261, ¶ 7 (Sup. Ct. 2019) (“The Fourth Circuit has squarely rejected a Free Exercise Clause challenge to West Virginia’s law mandating vaccination as a condition for admission to school (see Workman v. Mingo County Bd. of Educ., 419 Fed Appx 348, 354 [4th Cir 2011], cert denied 565 US 1036, 132 S Ct 590, 181 L Ed 2d 424 ). Likewise, both the federal and state courts in California have rejected Free Exercise Clause challenges to that state’s recent repeal of its personal belief exemption, which encompassed religious objections (see e.g. Whitlow v California, 203 F Supp 3d 1079, 1085–87 [SD Cal 2016] [denying preliminary injunction]; Love v State Dept of Educ., 29 Cal App 5th 980, 996, 240 Cal. Rptr. 3d 861 [3d App Dist 2018] [dismissing constitutional challenges]; Brown v Smith, 24 Cal App 5th 1135, 1144–45, 235 Cal. Rptr. 3d 218 [2d App Dist 2018] [dismissing constitutional challenges]; see also McCarthy v Boozman, 212 F Supp 2d 945, 948 [WD Ark 2002], appeal dismissed 359 F3d 1029  [“The constitutional right to freely practice one’s religion does not provide an exemption for parents seeking to avoid compulsory immunization for their school-aged children.”])”).
Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348 (4th Cir. 2011).
James Colgrove & Abigail Lowin, A Tale of Two States: Mississippi, West Virginia, and Exemptions to Compulsory School Vaccination Laws, 35 HealthAffairs 348, 350–51 (2016).
Joe Lawlor, Vaccine Bill Passed by Lawmakers Likely Headed for Statewide Vote, Portland Press Herald (Sept. 18, 2019), https://www.pressherald.com/2019/09/18/vaccine-opponents-submit-peoples-veto-petitions/.