Last month, California became the third state to eliminate all-but-medically-required reasons for refusal to vaccinate children who would attend public or private school in the state. The new law eventually will eliminate the personal-belief exemption that allows parents to exclude their children from protection against communicable diseases simply because the parents don’t want their offspring to receive medical treatment in the form of vaccinations.
Of course, not only are unvaccinated children left unprotected against disease and death, but the chances for disease and death of other children increase, especially those who cannot be vaccinated because they are undergoing treatment for cancer. So, too, are infants who are too young to receive immunization.
Private or public childcare centers, preschools, elementary schools and secondary schools in California cannot admit children unless they are immunized against 10 diseases, including diphtheria, bacterial meningitis, measles, mumps, whooping cough, polio, rubella, tetanus, hepatitis B and chicken pox, or unless there is a valid medical reason why the children cannot be vaccinated.
Under the California law, if the parents of a child decide to home-school their child, no vaccinations are required. Thus, if your child doesn’t go to school with other children, she or he does not have to receive vaccinations.
The law goes into effect on Jan. 1 and personal belief exemptions filed up unitl that date are grandfathered in. Children under the exemption do not have to be vaccinated until they reach their next vaccination checkpoint: kindergarten or 7th grade.
California joins West Virginia and Mississippi in allowing only medical exemptions. Mississippi has the highest vaccination rate in the country for school-age children: 99.7 percent of those in kindergarten are fully protected. And only 140 students in the entire state entered school without all of their required shots.
“It’s nice not having measles in Mississippi,” a state health officer told The Washington Post recently.
Maryland’s immunization schedule closely tracks California’s: protection against diphtheria, tetanus, whooping cough, bacterial meningitis, measles, mumps, rubella, hepatitis B, chicken pox, polio, Haemophilus influenzae, type b, and pneumococcal disease. (COMAR 10.06.04.03 A.) No student is allowed to attend preschool or school, public or private, in this state without the required shots.
Maryland provides two exceptions: medical contraindications as attested to by a licensed physician or health officer; and a religious exemption: “[A] student whose parent or guardian objects to immunization on the ground that the immunization conflicts with the parent’s or guardian’s bona fide religious beliefs and practices . . ..” The exemption “does not apply when the Secretary declares an emergency or epidemic of disease.”
Maryland should eliminate the “religious” exemption, which, in practice, is the same as the personal belief exemption abolished in California. Such action would place Maryland in the forefront of states determined to protect the safety and lives of its children.
First, although the law requires “bona fide religious beliefs and practices” by parents to secure an exemption, no administrator is likely to challenge a religious belief claim. Nor would a detailed investigation of the religious bona fides of a parent withstand likely constitutional scrutiny. It would likely contravene the U.S. Constitution’s prohibition under the First Amendment of entanglement of government with religion. (See Barghout v. Bureau of Kosher Meat and Food Control, where the 4th U.S. Circuit Court of Appeals threw out Baltimore city’s anti-fraud regulation protecting the public against food that was falsely claimed to be kosher.)
Second, religious claims are presumptively invalid, and their use would merely be a pretext for refusing to protect children against disease and death. The New York Times reported in February that “among the major religions there is virtually no canonical basis for vaccine aversion…” The Orthodox Union and the Rabbinical Council of America stated that the vaccination of children is “the only responsible course of action.” The only religion whose rejection of medical treatment is foundational is Christian Science.
No religious exemption is justified in order to allow a parent to send an unprotected child to school with other children. Nor does the First Amendment require a religious exemption, any more than any other public safety regulation would allow an opt out; the Times gave seat-belt laws as an example.
The justification for exemption now urged is purely process based, that it is a matter of choice for parents. Presumably that is because the medical quackery urged against vaccinations has been so thoroughly debunked that only the unhinged (Robert F. Kennedy, Jr. on the anti-science left and Donald Trump on the anti-science right) still cling to them. But for parents who deeply and seriously want to put their children at risk of disease and death can always choose to have them home-schooled. That is more than sufficient accommodation for the anti-vaxxers.
Nor is there any legitimate libertarian interest to preserve the religious exemption, or any exemption at all other than that for medical reasons. The protection of the public from communicable disease has long been a core function of government. On that justification, raw sewage no longer is allowed to run along our streets. The royal government of England closed theaters in Shakespeare’s time during outbreaks of plague. Putting public sanitation and vaccinations together has resulted in a dramatic reduction in infant and child mortality. Vaccines are now provided to adults to protect against shingles, a serious disease that can result in lifelong pain, and pneumonia.
Maryland state Del. Benjamin S. Barnes, D-Prince George’s, introduced a bill in the last General Assembly session to eliminate the religious exemption. But he withdrew it after being accused of a conflict of interest because he had represented five clients since 2006 in federal vaccine court, a tribunal that adjudicates claims of adverse reactions to vaccines. The claim of conflict was unfounded and the unchanged medical exemption would have thoroughly protected the children of Maryland.
Even for vaccinated children, the need is crucial for comprehensive vaccination of children with whom they are in contact. The vaccines are not 100 percent effective, and the more children vaccinated the less likely that any child will be stricken.
Anne Arundel County suffered an outbreak of whooping cough in January, with 11 cases reported. The whooping cough vaccine was modified some years ago to dampen the possibility of high fever but, as a result, it became less effective.
The need is pressing to bring Maryland’s combined vaccination rate up from 75.8 percent.
“If you’ve ever seen a child with pertussis, it’s unforgettable,” Dr. Alan Cross of the University of Maryland’s Center for Vaccine Development told The Baltimore Sun. “They whoop. You hold your breath and hope they take the next breath. And if you’re exposed to someone with pertussis, or measles, and you’re not immunized, you’re highly likely to get it.”
Let’s give the last word to Doctor Paul Offit, a pediatrician at the Children’s Hospital of Philadelphia, who grew up in Baltimore:
“Parents shouldn’t be allowed to martyr their children-or in this case, those with whom their children have come into contact. Religious exemptions to vaccination are a contradiction in terms. In the good name of all religions, they should be eliminated.”
Editorial Advisory Board member Elizabeth Kameen did not participate in this opinion
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
Wesley D. Blakeslee
Arthur F. Fergenson
Daniel F. Goldstein
C. William Michaels
Tracy L. Steedman
H. Mark Stichel
Ferrier R. Stillman
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.