Religious Exemptions to the Immunization Statutes: Balancing Public Health and Religious Freedom

Journal of Law, Medicine and Ethics

Volumn 25, Issue 2-3, 1997, Pages 202-209

  Ross, Lainie Friedman ^a   Aspinwall, Timothy J ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

AMERICAN ACADEMY OF PEDIATRICS; ANALYTICAL APPROACH; CHILD; CIVIL RIGHTS; GOVERNMENT REGULATION; HEALTH CARE AND PUBLIC HEALTH; HUMAN; LEGAL APPROACH; LEGAL ASPECT; MALPRACTICE; MANDATORY PROGRAM; PARENTAL CONSENT; PERSONAL AUTONOMY; PREVENTIVE HEALTH SERVICE; RELIGION; RELIGIOUS APPROACH; REVIEW; RISK ASSESSMENT; UNITED STATES;

AMERICAN ACADEMY OF PEDIATRICS; ANALYTICAL APPROACH; HEALTH CARE AND PUBLIC HEALTH; LEGAL APPROACH; RELIGIOUS APPROACH;

CHILD; CHRISTIANITY; CIVIL RIGHTS; GOVERNMENT REGULATION; HUMANS; IMMUNIZATION PROGRAMS; MALPRACTICE; MANDATORY PROGRAMS; PARENTAL CONSENT; PERSONAL AUTONOMY; RELIGION AND MEDICINE; RISK ASSESSMENT; UNITED STATES;

EID: 0347075221     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.1997.tb01895.x     Document Type: Article

References (59)

1. Committee on Bioethics, American Academy of Pediatrics, "Religious Objections to Medical Care," Pediatrics, 99 (1997): 279-81. This committee statement updates that committee's previous statement in 1987. See Committee on Bioethics, American Academy of Pediatrics, "Religious Exemptions from Child Abuse Statutes," Pediatrics, 81 (1988): 169-71.
2. Committee on Bioethics, American Academy of Pediatrics, "Religious Objections to Medical Care," Pediatrics, 99 (1997): 279-81. This committee statement updates that committee's previous statement in 1987. See Committee on Bioethics, American Academy of Pediatrics, "Religious Exemptions from Child Abuse Statutes," Pediatrics, 81 (1988): 169-71.
3. Committee on Bioethics (1988), supra note 1.
4. Centers for Disease Control and Prevention, State Immunization Requirements, 1994-95 (Washington, D.C.: U.S. Department of Health and Human Services, 1995): at 22.
5. Personal Communication with Arthur F. Kohrman, M.D., Associate Chair, Child Advocacy, Children's Memorial Hospital, in Chicago, Ill. (Feb. 6, 1996).
6. Committee on Bioethics (1997), supra note 1, at 279.
7. C.H. Kempe et al., "The Battered Child Syndrome," JAMA, 181 (1962): 105-12.
8. L.S. Wissow, "Child Abuse and Neglect," N. Engl. J. Med., 332 (1995): 1425-31 (citing National Center on Child Abuse and Neglect, Study Findings: Study of National Incidence and Prevalence of Child Abuse and Neglect (Washington, D.C.: U.S. Department of Health and Human Services, 1988).
9. L.S. Wissow, "Child Abuse and Neglect," N. Engl. J. Med., 332 (1995): 1425-31 (citing National Center on Child Abuse and Neglect, Study Findings: Study of National Incidence and Prevalence of Child Abuse and Neglect (Washington, D.C.: U.S. Department of Health and Human Services, 1988).
10. See State v. McKown, 475 N.W.2d 63 (Minn. 1991); Funkhouser v. State, 763 P.2d 695 (Okla. 1988); and Bergmann v. State, 486 N.E.2d 653 (Ind. 1985).
11. See, for example, Sampson v. Taylor, 278 N.E.2d 918 (N.Y. 1972) and In re Seiferth, 127 N.E.2d 820 (N.Y. 1955), respectively. Lainie Friedman Ross has argued elsewhere that these types of decisions may be medically neglectful but they should not be within the realm of medical neglect deserving state intervention. See L.F. Ross, Health Care Decision Making for Children (1996) unpublished Ph.D. dissertation, Yale University (on file with author).
12. The Department of Health Education and Welfare established regulations pursuant to the Child Abuse and Prevention Act of 1974. 42 U.S.C.A. § 5101 (West 1997). The regulations require states to permit exemptions for spiritual treatment in order to be eligible for federal matching funds in child abuse and neglect prevention programs. These exemptions were passed in large part because several key aides to President Richard Nixon were Christian Scientists. Child Abuse and Neglect Prevention and Treatment Program, 39 Fed. Reg. 43,937 (1974).
13. C.H.I.L.D. (Children's Healthcare is a Legal Duty, Inc.) has compiled a list of forty-four court cases involving parental medical neglect of children. Personal Communication with Rita Swan, C.H.I.L.D. (June 3, 1995). It is likely that many instances of medical neglect are not reported to the authorities, and, of those that are, many do not result in litigation.
14. See Committee on Bioethics (1988), supra note 1, at 169.
15. Committee on Bioethics (1997), supra note 1, at 279 (citing Walker v. Superior Court, 763 P.2d 852, 860 (Cal. 1988), cert. denied, 491 U.S. 905 (1989). Dr. Ross supports the recommendation of the American Academy of Pediatrics (AAP) to repeal the exemptions to the child abuse and neglect statutes. Timothy Aspinwall argues against repeal because the resulting criminal prosecutions of parents for failure to provide religiously objectionable medical treatment unnecessarily burden religious freedom. Mr. Aspinwall supports a legal requirement that parents report their child's serious illnesses to the proper authorities, thereby permitting appropriate medical intervention. The question we posed ourselves was whether there are areas of consensus regarding the balance of religious freedom and health care. This paper represents one such area.
16. See Committee on Bioethics (1997), supra note 1, at 279.
17. Medical neglect, as used here, is much broader than and distinct from the legal concept of medical neglect, which indicates a breach of a legal duty of care and provides justification for state intervention. Many cases of medical neglect, broadly defined, would not meet the legal standard.
18. The U.S. Supreme Court has ruled that parents have a constitutionally protected right to make determinations about their child's upbringing without undue state interference. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925); and Meyer v. Nebraska, 262 U.S. 390 (1923). Nevertheless, parental rights are not absolute. For example, parental rights are limited by the state's interest in protecting children from harm or neglect. See Prince v. Massachusetts, 321 U.S. 158 (1944).
19. Joseph Goldstein, Anna Freud, and Albert Solnit propose this term. See J. Goldstein, A. Freud, and A. Solnit, Before the Best Interests of the Child (New York: Free Press, 1979): at 24-25.
20. See id. at 9-13.
21. See id. at 91.
22. For a discussion of why the criteria proposed by Goldstein, Freud, and Solnit need modification, see Ross, supra note 9, at ch. 7. We do not address questions such as how likely is likely, how high a probability of success needs to be to fulfill Goldstein, Freud, and Solnit's criteria, or when the probability of serious morbidity is low enough. Although one would expect consensus that a 99 percent likelihood of success is likely and a 1 percent likelihood is unlikely, where one should draw the line between these extremes is less clear-cut. To some extent, the line would need to reflect a community's balance between medical and nonmedical goals and expectations, which vary in different communities and different time periods.
23. In fact, there may be advantages in being a free-rider: one gets the benefits of herd immunity without exposure to the risk of the vaccine.
24. Requiring both criteria to hold means that some vaccinations presently mandated by the state are less justifiable than others. For example, the rubella vaccine does not prevent serious illness in individual children but prevents serious problems in fetuses whose mothers catch rubella from infected children. As such, the benefit is not to the particular immunized child per se, but to the community. It is not our intent to discuss the pros and cons of each immunization, but to look at the general practice of state-mandated vaccination laws and the religious exemptions to these statutes.
25. Jacobson v. Massachusetts, 197 U.S. 11 (1905).
26. See id. at 25. The state's authority in Jacobson was extended to include child care and religious freedom by the Supreme Court's ruling in Prince, 321 U.S. 158. In Prince, the Court upheld the criminal conviction of a Jehovah's Witness for permitting her nine-year-old niece to sell pamphlets in violation of a child safety law. The Court punctuated its ruling with the often quoted statement that "Parents may be free to become martyrs themselves. But it does not follow [that] they are free ... to make martyrs of their children...." Id. at 170.
27. Sonja Hutchins et al. define an outbreak as five or more epidemiologically linked cases. They reported 815 measles outbreaks in the United States between 1987 and 1990. See S. Hutchins et al., "Measles Outbreaks in the United States, 1987 Through 1990," Pediatric Infectious Disease Journal, 15 (1996): at 31-38.
28. Centers for Disease Control and Prevention, "Reported Vaccine-Preventable Diseases - United States, 1993, and the Childhood Immunization Initiative," Morbidity and Mortality Weekly Report, 43, no. 4 (1994): at 58.
29. Vaccination coverage necessary to achieve herd immunity depends on the disease; for example, measles and pertussis, 92 to 95 percent; mumps, 90 to 92 percent; rubella, 85 to 87 percent; and diphtheria and polio, 80 to 85 percent. See R. Anderson and R. May, "Modern Vaccines," Lancet, 335 (1990): 641-42.
30. In its review of the data, the AAP concluded that no causal relationship exists between DTP (diphtheria, tetanus, and pertussis) vaccination and chronic neurologic disorders. See Committee on Bioethics, American Academy of Pediatrics, "The Relationship Between Pertussis Vaccine and Central Nervous System Sequelae: Continuing Assessment," Pediatrics, 97 (1996): 279-81. Similar conclusions have been reached by the National Vaccine Advisory Committee. See National Vaccine Advisory Committee, Report of the Ad Hoc Subcommittee on Childhood Vaccines (Washington, D.C.: U.S. Department of Health and Human Services, 1994); and Advisory Committee of Immunization Practices, Centers for Disease Control and Prevention, "Update: Vaccine Side Effects, Adverse Reactions, Contraindications, and Precautions. Recommendations of the Advisory Committee of Immunization Practices," Morbidity and Mortality Weekly Report, 45, no. 2 (1996): 1-35.
31. In its review of the data, the AAP concluded that no causal relationship exists between DTP (diphtheria, tetanus, and pertussis) vaccination and chronic neurologic disorders. See Committee on Bioethics, American Academy of Pediatrics, "The Relationship Between Pertussis Vaccine and Central Nervous System Sequelae: Continuing Assessment," Pediatrics, 97 (1996): 279-81. Similar conclusions have been reached by the National Vaccine Advisory Committee. See National Vaccine Advisory Committee, Report of the Ad Hoc Subcommittee on Childhood Vaccines (Washington, D.C.: U.S. Department of Health and Human Services, 1994); and Advisory Committee of Immunization Practices, Centers for Disease Control and Prevention, "Update: Vaccine Side Effects, Adverse Reactions, Contraindications, and Precautions. Recommendations of the Advisory Committee of Immunization Practices," Morbidity and Mortality Weekly Report, 45, no. 2 (1996): 1-35.
32. In its review of the data, the AAP concluded that no causal relationship exists between DTP (diphtheria, tetanus, and pertussis) vaccination and chronic neurologic disorders. See Committee on Bioethics, American Academy of Pediatrics, "The Relationship Between Pertussis Vaccine and Central Nervous System Sequelae: Continuing Assessment," Pediatrics, 97 (1996): 279-81. Similar conclusions have been reached by the National Vaccine Advisory Committee. See National Vaccine Advisory Committee, Report of the Ad Hoc Subcommittee on Childhood Vaccines (Washington, D.C.: U.S. Department of Health and Human Services, 1994); and Advisory Committee of Immunization Practices, Centers for Disease Control and Prevention, "Update: Vaccine Side Effects, Adverse Reactions, Contraindications, and Precautions. Recommendations of the Advisory Committee of Immunization Practices," Morbidity and Mortality Weekly Report, 45, no. 2 (1996): 1-35.
33. See Centers for Disease Control and Prevention, supra note 3, at 22.
34. The establishment clause of the First Amendment of the U.S. Constitution prohibits exemption eligibility criteria that privilege one religion over another or that require membership in an established religion. See Levy v. Northport-East Northport Union Free School District, 672 F. Supp. 81 (E.D.N.Y. 1987). Some state courts had previously upheld statutes limiting exemption eligibility to members of an established religion. See, for example, Brown v. Stone, 378 So. 2d 218 (Miss. 1979). But most do not. See, for example, Davis v. State, 451 A.2d 107 (Md. 1982); Maier v. Besser, 341 N.Y.S.2d 411 (1972); and Dalli v. Board of Education, 267 N.E.2d 219 (Mass. 1971).
35. See Centers for Disease Control and Prevention, supra note 3.
36. Whether philosophical exemptions are necessary is debatable because religious exemptions include philosophical beliefs that are "sincerely held and ultimately authoritative." See Welsh v. United States, 398 U.S. 333 (1970); and United States v. Seeger, 380 U.S. 163 (1965). As such, persons with nontraditional nontheistic beliefs may qualify for exemption. Nevertheless, people with nontraditional beliefs may still be at some disadvantage in applying for exemption. See Mason v. General Brown Central School District, 851 F.2d 47 (2d Cir. 1988) (noting that belief in a "natural existence" did not qualify for religious exemption to the vaccination requirement).
37. If the percentage of parents who sought religious exemptions for their children were significantly greater, the risk-benefit balance of permitting exemptions might change. We do not address what percentage would be too high.
38. P. Fine, Commentary on "Herd Immunity: Basic Concept and Relevance to Public Health Immunization Practices," American Journal of Epidemiology, 141, no. 3 (1995): 185; and J. Fox et al., "Herd Immunity: Basic Concept and Relevance to Public Health Immunization Practices," American Journal of Epidemiology, 94, no. 3 (1971): 179.
39. P. Fine, Commentary on "Herd Immunity: Basic Concept and Relevance to Public Health Immunization Practices," American Journal of Epidemiology, 141, no. 3 (1995): 185; and J. Fox et al., "Herd Immunity: Basic Concept and Relevance to Public Health Immunization Practices," American Journal of Epidemiology, 94, no. 3 (1971): 179.
40. A recent survey shows that approximately 76 percent of U.S. children aged 19 to 35 months have been fully vaccinated. This is the highest rate ever achieved in the United States, but it still falls short of the goal established by the Centers for Disease Control and Prevention (CDC) of 90 percent coverage by 1996. See Centers for Disease Control and Prevention, "National, State, and Urban Area Vaccination Coverage Levels Among Children Aged 19-35 Months - United States, July 1994-June 1995," Morbidity and Mortality Weekly Report, 45, no. 24 (1996): at 509.
41. The efficacy rate for vaccinations is as follows: tetanus and polio, 100 percent; diphtheria, 95 percent; measles, 90 to 98 percent; mumps and rubella, 90 to 97 percent; and pertussis, 70 to 90 percent. See W. Atkinson et al., eds., Centers for Disease Control and Prevention, Epidemiology and Prevention of Vaccine-Preventable Diseases (Atlanta: U.S. Department of Health and Human Services, 2nd ed., July 1995): at 42, 52, 63, 79, 96, 106, 118.
42. A sharply divided U.S. Supreme Court just held that the government is free to enact generally applicable laws that burden religious freedom. See Boerne v. Flores, 117 S. Ct. 2157 (1997). However, precedent supports the claim that a generally applicable religiously burdensome law must be narrowly tailored to serve a compelling state interest by the least intrusive means. See Yoder, 406 U.S. 205; and Sherber v. Verner, 374 U.S. 398 (1963).
43. See Centers for Disease Control and Prevention, supra note 26, at 58.
44. The federal government is trying to increase the childhood vaccination rate. However, political realities prevent the enabling legislation from being as thorough as originally proposed. See infra notes 47-49 and accompanying text. Individual states are also making efforts to increase the rate of voluntary vaccination. For example, the Georgia Division of Public Health increased the vaccination rate of children served at all state public health clinics from 35 percent in 1987 to 80 percent in 1993. See Centers for Disease Control and Prevention, "Evaluation of Vaccination Strategies in Public Health Clinics - Georgia, 1985-1993," Morbidity and Mortality Weekly Report, 44, no. 16 (1995): at 323.
45. The classic example of harm from a vaccine is the Cutter incident in which 260 cases of paralytic poliomyelitis (inflammation of the spinal cord) were caused by the use of Cutter polio vaccine that contained active virus. See N. Nathanson and A.D. Langmuir, "The Cutter Incident: Poliomyelitis Following Formaldehyde-Inactivated Poliovirus Vaccination in the United States During the Spring of 1955. II. Relationship of Poliomyelitis to Cutter Vaccine," American Journal of Hygiene, 78 (1963): 29-60. More recently, an outbreak of Guillain-Barre syndrome (inflammation of large numbers of spinal nerves) developed in adults following swine flu vaccination. See L.B. Schonberger et al., "Guillain-Barre Syndrome Following Vaccination in the National Influenza Immunization Program, United States, 1976- 77," American Journal of Epidemiology, 110 (1979): 105-23. These two outbreaks are exceptions. A 1993 Institute of Medicine (IOM) report on the safety of vaccines found very few instances of serious adverse sequelae from all the major vaccinations. See K.R. Stratton, C.J. Howe, and R.B. Johnston Jr., eds., Vaccine and Safety Committee, Division of Health Promotion and Disease Prevention, Institute of Medicine, Adverse Events Associated with Childhood Vaccines: Evidence Bearing on Causality (Washington, D.C.: National Academy Press, 1994). For a summary of the report, see K.R. Stratton, C.J. Howe, and R.B. Johnston Jr., "Adverse Events Associated with Childhood Vaccines Other than Pertussis and Rubella," JAMA, 271 (1994): at 1604, 1605. The findings of IOM and of a subcommittee of the National Vaccine Advisory Committee were reviewed prior to revisions of the Vaccine Injury Table by the National Compensation Program, which provides financial compensation to families who claim that their child was injured by a vaccination. See Stratton, Howe, and Johnston, id.; National Vaccine Advisory Committee, supra note 28; and National Vaccine Injury Compensation Program: Revision of the Vaccine Injury Table: Final Rule, 60 Fed. Reg. 7678-96 (1995). The National Compensation Program often grants compensation even though no causal relationship between a particular vaccine and a particular injury has been firmly established.
46. The classic example of harm from a vaccine is the Cutter incident in which 260 cases of paralytic poliomyelitis (inflammation of the spinal cord) were caused by the use of Cutter polio vaccine that contained active virus. See N. Nathanson and A.D. Langmuir, "The Cutter Incident: Poliomyelitis Following Formaldehyde-Inactivated Poliovirus Vaccination in the United States During the Spring of 1955. II. Relationship of Poliomyelitis to Cutter Vaccine," American Journal of Hygiene, 78 (1963): 29-60. More recently, an outbreak of Guillain-Barre syndrome (inflammation of large numbers of spinal nerves) developed in adults following swine flu vaccination. See L.B. Schonberger et al., "Guillain-Barre Syndrome Following Vaccination in the National Influenza Immunization Program, United States, 1976-77," American Journal of Epidemiology, 110 (1979): 105-23. These two outbreaks are exceptions. A 1993 Institute of Medicine (IOM) report on the safety of vaccines found very few instances of serious adverse sequelae from all the major vaccinations. See K.R. Stratton, C.J. Howe, and R.B. Johnston Jr., eds., Vaccine and Safety Committee, Division of Health Promotion and Disease Prevention, Institute of Medicine, Adverse Events Associated with Childhood Vaccines: Evidence Bearing on Causality (Washington, D.C.: National Academy Press, 1994). For a summary of the report, see K.R. Stratton, C.J. Howe, and R.B. Johnston Jr., "Adverse Events Associated with Childhood Vaccines Other than Pertussis and Rubella," JAMA, 271 (1994): at 1604, 1605. The findings of IOM and of a subcommittee of the National Vaccine Advisory Committee were reviewed prior to revisions of the Vaccine Injury Table by the National Compensation Program, which provides financial compensation to families who claim that their child was injured by a vaccination. See Stratton, Howe, and Johnston, id.; National Vaccine Advisory Committee, supra note 28; and National Vaccine Injury Compensation Program: Revision of the Vaccine Injury Table: Final Rule, 60 Fed. Reg. 7678-96 (1995). The National Compensation Program often grants compensation even though no causal relationship between a particular vaccine and a particular injury has been firmly established.
47. The classic example of harm from a vaccine is the Cutter incident in which 260 cases of paralytic poliomyelitis (inflammation of the spinal cord) were caused by the use of Cutter polio vaccine that contained active virus. See N. Nathanson and A.D. Langmuir, "The Cutter Incident: Poliomyelitis Following Formaldehyde-Inactivated Poliovirus Vaccination in the United States During the Spring of 1955. II. Relationship of Poliomyelitis to Cutter Vaccine," American Journal of Hygiene, 78 (1963): 29-60. More recently, an outbreak of Guillain-Barre syndrome (inflammation of large numbers of spinal nerves) developed in adults following swine flu vaccination. See L.B. Schonberger et al., "Guillain-Barre Syndrome Following Vaccination in the National Influenza Immunization Program, United States, 1976- 77," American Journal of Epidemiology, 110 (1979): 105-23. These two outbreaks are exceptions. A 1993 Institute of Medicine (IOM) report on the safety of vaccines found very few instances of serious adverse sequelae from all the major vaccinations. See K.R. Stratton, C.J. Howe, and R.B. Johnston Jr., eds., Vaccine and Safety Committee, Division of Health Promotion and Disease Prevention, Institute of Medicine, Adverse Events Associated with Childhood Vaccines: Evidence Bearing on Causality (Washington, D.C.: National Academy Press, 1994). For a summary of the report, see K.R. Stratton, C.J. Howe, and R.B. Johnston Jr., "Adverse Events Associated with Childhood Vaccines Other than Pertussis and Rubella," JAMA, 271 (1994): at 1604, 1605. The findings of IOM and of a subcommittee of the National Vaccine Advisory Committee were reviewed prior to revisions of the Vaccine Injury Table by the National Compensation Program, which provides financial compensation to families who claim that their child was injured by a vaccination. See Stratton, Howe, and Johnston, id.; National Vaccine Advisory Committee, supra note 28; and National Vaccine Injury Compensation Program: Revision of the Vaccine Injury Table: Final Rule, 60 Fed. Reg. 7678-96 (1995). The National Compensation Program often grants compensation even though no causal relationship between a particular vaccine and a particular injury has been firmly established.
48. The classic example of harm from a vaccine is the Cutter incident in which 260 cases of paralytic poliomyelitis (inflammation of the spinal cord) were caused by the use of Cutter polio vaccine that contained active virus. See N. Nathanson and A.D. Langmuir, "The Cutter Incident: Poliomyelitis Following Formaldehyde-Inactivated Poliovirus Vaccination in the United States During the Spring of 1955. II. Relationship of Poliomyelitis to Cutter Vaccine," American Journal of Hygiene, 78 (1963): 29-60. More recently, an outbreak of Guillain-Barre syndrome (inflammation of large numbers of spinal nerves) developed in adults following swine flu vaccination. See L.B. Schonberger et al., "Guillain-Barre Syndrome Following Vaccination in the National Influenza Immunization Program, United States, 1976- 77," American Journal of Epidemiology, 110 (1979): 105-23. These two outbreaks are exceptions. A 1993 Institute of Medicine (IOM) report on the safety of vaccines found very few instances of serious adverse sequelae from all the major vaccinations. See K.R. Stratton, C.J. Howe, and R.B. Johnston Jr., eds., Vaccine and Safety Committee, Division of Health Promotion and Disease Prevention, Institute of Medicine, Adverse Events Associated with Childhood Vaccines: Evidence Bearing on Causality (Washington, D.C.: National Academy Press, 1994). For a summary of the report, see K.R. Stratton, C.J. Howe, and R.B. Johnston Jr., "Adverse Events Associated with Childhood Vaccines Other than Pertussis and Rubella," JAMA, 271 (1994): at 1604, 1605. The findings of IOM and of a subcommittee of the National Vaccine Advisory Committee were reviewed prior to revisions of the Vaccine Injury Table by the National Compensation Program, which provides financial compensation to families who claim that their child was injured by a vaccination. See Stratton, Howe, and Johnston, id.; National Vaccine Advisory Committee, supra note 28; and National Vaccine Injury Compensation Program: Revision of the Vaccine Injury Table: Final Rule, 60 Fed. Reg. 7678-96 (1995). The National Compensation Program often grants compensation even though no causal relationship between a particular vaccine and a particular injury has been firmly established.
49. See Davis, 451 A.2d 107.
50. This would involve appointing a public guardian with the power to consent to a vaccination. For an example of this approach, see Mannis v. State, 398 S.W.2d 206 (Ark. 1966).
51. The burden on religious freedom created by this option is similar to the burden of a religiously objectionable curriculum: parents who object to the conditions at public schools may choose to send their children elsewhere. This burden is not excessive. But given the alternatives regarding immunizations, we question whether this represents an optimal balance.
52. For an excellent article on this topic, see P. Cole, "The Moral Bases for Public Health Intervention," Epidemiology, 6 (1995): 78-83.
53. See Centers for Disease Control and Prevention, supra note 3, at 22. Although it is recommended that primary vaccinations be completed within the first two years of life followed by booster shots prior to school entry, it is administratively difficult to ensure compliance until the parents enroll their children in school. As such, parents do not need to seek exemptions until school enrollment.
54. The Comprehensive Childhood Immunization Act of 1993 was devised to overcome financial barriers to immunizations. 42 U.S.C.A. § 1396s (West 1997). The Act mandates that the federal government provide vaccines to physicians at no cost for children who are enrolled in Medicaid, who are Native Americans, and/or whose parents' insurance does not cover immunizations.
55. The Immunization Information Systems promoted by CDC are methods of tracking and identifying those children who need to be vaccinated.
56. There are a number of reasons why the Comprehensive Childhood Immunization Act of 1993 has only been partially successful. First, qualifying primary care providers may charge to cover the cost of administering the vaccine. 42 U.S.C.A. § 1396s(a), (c), (d). Although a participating physician may not refuse to vaccinate a child who cannot pay this fee, financially needy parents may not know this or may be reluctant to ask for a fee waiver. Second, physicians are required to determine whether the child qualifies for the vaccination program, and the physician is required to keep records to verify the child's qualifying status. 42 U.S.C.A. § 1396s(c)(2)(A)-(C). The bureaucratic requirements may deter physicians from participating in the program. The result is that many qualifying children may be unable to get these vaccines except in public clinics. For proposals to remove access barriers, see American Academy of Pediatrics, "Implementation of the Immunization Policy (S94-26)," Pediatrics, 96 (1995): 360-61. The Immunization Information Systems also have problems. Opponents have serious ethical concerns related to privacy and confidentiality of the records. See, for example, L.O. Gostin and Z. Lazzarini, "Childhood Immunization Registries: A National Review of Public Health Information Systems and the Protection of Privacy," JAMA, 274 (1995): 1793, 1794.
57. There are a number of reasons why the Comprehensive Childhood Immunization Act of 1993 has only been partially successful. First, qualifying primary care providers may charge to cover the cost of administering the vaccine. 42 U.S.C.A. § 1396s(a), (c), (d). Although a participating physician may not refuse to vaccinate a child who cannot pay this fee, financially needy parents may not know this or may be reluctant to ask for a fee waiver. Second, physicians are required to determine whether the child qualifies for the vaccination program, and the physician is required to keep records to verify the child's qualifying status. 42 U.S.C.A. § 1396s(c)(2)(A)-(C). The bureaucratic requirements may deter physicians from participating in the program. The result is that many qualifying children may be unable to get these vaccines except in public clinics. For proposals to remove access barriers, see American Academy of Pediatrics, "Implementation of the Immunization Policy (S94-26)," Pediatrics, 96 (1995): 360-61. The Immunization Information Systems also have problems. Opponents have serious ethical concerns related to privacy and confidentiality of the records. See, for example, L.O. Gostin and Z. Lazzarini, "Childhood Immunization Registries: A National Review of Public Health Information Systems and the Protection of Privacy," JAMA, 274 (1995): 1793, 1794.
58. The AAP's Committee on Bioethics also supports "mandatory mass vaccinations in epidemic situations." See Committee on Bioethics (1997), supra note 1, at 280.
59. We do not address whether the state has the moral right to act paternalistically toward adults. Some ethicists, however, question the state's right to mandate any public health measures for children or adults. See, for example, R.M. Veatch, "The Ethics of Promoting Herd Immunity," Family and Community Health, 10, no. 1 (1987): 44-53. In this paper, Robert Veatch questions state-mandated universal immunizations because he thinks no one benefits from the promotion of herd immunity.