A new school year is beginning for millions of U.S. schoolchildren. Most parents of wee ones know that states require a battery of immunizations in order for kids to enroll in public school.

Exemptions were once reserved for a vanishingly tiny minority of religious families whose beliefs prohibit certain kinds of medical treatment. There was nothing trendy or sexy about it. Thanks, however, to a burgeoning anti-vaccine movement and celebrity spokespeople like Jenny McCarthy, the number of families seeking exemptions has grown dramatically in recent years. With this trend, significantly more people have been getting sick, and sometimes dying, from diseases none of us had to worry about a generation ago.

When state laws make it easier for parents to withhold vaccinations from their children, more children get sick. And you might too….

For example, in Texas right now, a measles outbreak has been reported at Kenneth Copeland’s Dallas-area megachurch. Whooping cough has reached an outbreak level in the state. More than 1,600 cases of the deadly, dangerous virus are reported so far in 2013. If the prevalence of the disease continues to spread at this rate, Texas will have its highest number of cases in more than half a century.

According to the CDC, up to one out of 20 children who contract measles also gets pneumonia. About one out of 1,000 gets encephalitis, and one or two out of 1,000 die. Before the measles vaccine, each year in the United States about 450 to 500 people died because of measles, 48,000 were hospitalized, 7,000 had seizures, and about 1,000 suffered permanent brain damage or deafness.

More than half of infants less than 1 year of age who get whooping cough are hospitalized. In 2010, 27,550 cases were reported in the U.S. This is the largest number of cases reported in the U.S. since 1959, when 40,000 cases were reported. Provisional counts indicate that more than 41,000 cases of whooping cough were reported to the CDC during 2012.

We aren’t talking about small pox here exactly. We are, however, talking about serious infectious diseases that cause misery, sometimes crippling life-long complications, and in some cases, death.

State laws differ in how easy it is for families to cite philosophical or religious reasons for opting out of inoculating their kids. For example, the relevant provision from Texas, Title 25 Health Services, §§ 97.62 of the Texas Administrative Code, provides in effect that, if a parent in Texas doesn’t want to immunize her kid, she just has to say so in a signed affidavit.

In Santa Cruz, California, 9.6 percent of parents opted out of immunizations last school year. At Sausalito’s New Village School, only 26 percent of incoming kindergarteners arrived vaccinated in 2012-2013. The CDC and World Health Organization report that when fewer than 92 to 94 percent of a population is not immunized from measles or whooping cough, herd immunity is compromised. This means that the unvaccinated can no longer count on the buffer provided by being surrounded by those who cannot carry the disease because they have received the vaccine.

The state of Washington used to have requirements similar to those in Texas. Last year, in response to its abysmally low vaccination numbers and frightfully high infection rates, Washington added a new requirement. Now if parents assert a philosophical or religious basis for their objection, they must get a signature from a health care provider that certifies that the parent has received information about the benefits and risks of immunization and is still opting out.

Altering legal requirements — even just a bit — makes a significant difference in immunization rates. A 2012 study reported in the New England Journal of Medicine found that rates of nonmedical exemptions in states with easy exemption policies were 2.31 times as high as rates in states with difficult exemption policies. Categories of difficulty in obtaining exemptions were based on several factors: whether completion of a standardized form was permissible, as opposed to a letter from a parent; where the parent obtained the form (i.e., school vs. health department); whether the form had to be notarized; and whether a letter from a parent, if required, needed to be worded a specific way, requiring extra effort from the parent.

Lest you think none of this applies to you, here are three reasons why you should care, even if you have no children or you choose to vaccinate your children:

(1) Infants and children who are in the midst of the course of vaccinations can still get infected.

(2) Even those with up-to-date vaccinations can still sometimes get infected, although their symptoms may be less severe. Note that this can still mean several weeks of missed work or school for otherwise healthy adults and children. (Think of what that would do to your billables.)

(3) Immunity fades over time. For years, doctors were not concerned that the effectiveness of the childhood vaccine schedule for many of these diseases diminished by the time people reached their thirties. If everyone got immunized as a child, this all but eradicated the disease. Now, with fewer people immunizing their children, the risk to adults who were last immunized as kids has increased. (There are adult boosters available. Go get them, especially if you hang out with children, Evangelicals, hippies, and/or Jenny McCarthy.)

Cracking down on frivolous exemptions to vaccinations is not about playing DEA agent or Michael Bloomberg. This is unlike laws criminalizing the use of marijuana, for example. It’s not about restricting personal choices about what drugs to consume by individuals who aren’t directly harming anyone else by their choices. Neither is this about paternalistically looking out for what the government believes is in the best interests of individuals whom the government doesn’t trust to make their own choices, as with Mayor Bloomberg’s anti-obesity initiatives. Why? Because mandatory immunizations work best when we all do them, and they don’t work very well when many folks opt out.

Mandating immunizations is much more like traffic-light laws than like seatbelt laws. In all but the most special instances, public safety trumps personal autonomy. If states are wise, they will follow Washington’s lead and make it increasingly harder for all but the rarest of families to receive exemptions from legally-mandated vaccines.

Don’t trust me on the scientific questions any more than you trust Jenny McCarthy. (I don’t think Partner Emeritus commenting on ATL posts makes this a peer-reviewed publication.) Consider instead the study published in The Lancet that first proposed a causal connection between the measles vaccine and autism, the study that gave rise to McCarthy’s fear-mongering. That article has since been thoroughly discredited, debunked, and retracted. While states can’t force parents to read medical journals, states can use stricter requirements for exemptions to make sure that more kids get the medicines that will keep us all safer.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com


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