Responding to the childhood vaccination crisis: Legal frameworks and tools in the context of parental vaccine refusal

Buffalo Law Review

Volumn 63, Issue 4, 2015, Pages 881-980

  Reiss, Dorit Rubinstein ^a   Weithorn, Lois A ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84948445808     PISSN: 00239356     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (384)

1. Liz Szabo, California Measles Outbreak Linked to Disneyland, USA TODAY (Jan. 8, 2015, 11:45 AM), http://www.usatoday.com/story/news/nation/2015/01/07/measles-outbreak-disneyland/21402755
2. see also Jennifer Zipprich et al., Measles Outbreak-California, December 2014-February 2014, CTRS. FORDISEASE CONTROL & PREVENTION (Feb. 20, 2015), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6406a5.htm?s-cid=mm6406a5-w.
3. See Measles: What You Need to Know, BERKELEY WELLNESS (Jan. 28, 2015), http://www.berkeleywellness.com/healthy-community/contagious-disease/article/measles-outbreak-what-you-need-know
4. see also Connie Cone Sexton, Officials: Up to 1K Possibly Exposed to Measles in Ariz., USA TODAY (Jan. 29, 2015, 8:49 AM), http://www.usatoday.com/story/news/nation/2015/01/29/officials-up-to-lk-possibly-exposed-to-measles-in-arizona/22511335 (referencing the potential for dramatic expansion). Figure 1 reveals the total number of measles cases in the United States in 2014 and to date in 2015.
5. In addition to the Disneyland outbreak, the number of measles cases was elevated in 2014 due to an outbreak in an Ohio Amish community with low vaccination rates. Although the outbreak in the Amish community involved more cases than the Disneyland outbreak, it generated less attention. This may be due to the isolation of the Amish community, which kept the outbreak contained. The Disneyland outbreak, by contrast, affected people from many states who were expected to return to their home communities, possibly spreading infection further. In addition, the general public may also have identified more closely with visitors to an outbreak in Disneyland seemed to lead many Americans to appreciate their own and their children's vulnerability to infection. See, e.g., Julia Belluz, Why America Only Cared About Measles Once It Hit Disneyland, Vox, http://www.vox.com/2015/1/30/7948085/why-america-only-cared-about-measles-once-it-hit-disneyland (last updated Jan. 30, 2015). The high rate of infection in the Amish community also reaffirms the insight that communities with low vaccination rates are at particularly high risk of experiencing disease outbreaks.
6. See Sandra W. Roush et al., Historical Comparisons of Morbidity and Mortality for Vaccine-Preventable Disease in the United States, 298 JAMA 2155, 2156, tbls.1&2 (2007).
7. Mark J. Papania et al., Elimination of Endemic Measles, Rubella, and Congenital Rubella Syndrome from the Western Hemisphere, The US Experience, 168 JAMA 148, 149(2014).
8. Bruesewitz v. Wyeth, 562 U.S. 223, 223 (2011).
9. See generally Roush et al., supra note 3, at 2155-219. Tables 1 and 2 provide the number of cases and deaths for the years leading up to the vaccine for each disease. Although there have been more cases of pertussis, due in part to a less effective vaccine, the number of cases is still much smaller than in the pre-vaccine era. Furthermore, deaths are rare today, compared with the years prior to the advent of the vaccine, when thousands of young babies died from pertussis each year. Surveillance & Reporting, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/pertussis/surv-reporting/cases-by-year.html (last updated Mar. 6, 2015).
10. See, e.g., Steven P. Calandrillo, Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?, 37 U. MICH. J.L. EEFORM 353 (2004)
11. see also Margaret A. Maglione et al., Safety of Vaccines Used for Routine Immunization of US Children: A Systematic Review, 134 PEDIATRICS 325 (2014).
12. See Nina Blank et al., Exempting Schoolchildren from Immunizations: States With Few Barriers Had Highest Rates of Nonmedical Exemptions, 32 HEALTH AFFAIRS 1282, 1282 (2013)
13. see also Saad B. Orner et al., Nonmedical Exemptions to School Immunization Requirements: Secular Trends and Association of State Policies with Pertussis Incidence, 296 JAMA 1757, 1762 (2006) [hereinafter Orner et al., Nonmedical Exemptions]
14. Saad B. Omer et al., Vaccination Policies and Rates of Exemption from Immunization, 2005-2011, 367 NEW ENG. J. MED. 1170, 1171 (2012) [hereinafter Orner et al., Vaccination Policies].
15. See Daniel R. Felkin et al., Individual and Community Risks of Measles and Pertussis Associated With Personal Exemptions to Immunization, 284 JAMA 3145, 3147-49 (2000)
16. Jason M. Glanz et al., Parental Refusal of Pertussis Vaccination is Associated With an Increased Risk of Pertussis Infection in Children, 123 PEDIATRICS 1446, 1449-50 (2009) [hereinafter Glanz et al., Parental Refusal of Pertussis Vaccination]
17. Aamer Imdad et al., Religious Exemptions for Immunization and Risk of Pertussis in New York State, 2000-2011, 132 PEDIATRICS 37, 38 (2013)
18. Daniel A. Salmon et al., Health Consequences of Religious and Philosophical Exemptions From Immunization Laws: Individual and Societal Risk of Measles, 282 JAMA 47, 48-49 (1999) [hereinafter Salmon et al., Health Consequences].
19. Most vaccines are reasonably effective, but none are perfect; two doses of MMR offer long-term protection to 99% of the individuals receiving them. CTRS. FOR DISEASE CONTROL & PREVENTION, EPIDEMIOLOGY AND PREVENTION OF VACCINE-PREVENTABLE DISEASES 175 (William Atkinson et al. eds., 12th ed. 2012), available at http://www.cdc.gov/vaccines/pubs/pinkbook/downloads/meas.pdf. "Studies indicate that more than 99% of persons who receive two doses of measles vaccine (with the first dose administered no earlier than the first birthday) develop serologic evidence of measles immunity." Id.
20. see also Saad B. Orner et al., Geographic Clustering of Nonmedical Exemptions to School Immunization Requirements and Associations with Geographic Clustering of Pertussis, 168 AM. J. EPIDEMIOLOGY 1389 (2008).
21. See Michael Worboys, Vaccines: Conquering Untreatable Diseases, 334 BMJ S19 (2007).
22. Fangjun Zhou et al., Economic Evaluation of the Routine Childhood Immunization Program in the United States, 2009, 133 PEDIATRICS 577, 581 (2014).
23. Vaccine-Preventable Diseases and the Vaccines that Prevent Them, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/vaccines/parents/downloads/parent-ver-sch-0-6yrs.pdf (last updated Jan. 26, 2015).
24. Nicola P. Klein et al., Safety of Measles-Containing Vaccines in 1-Year-Old Children, 135 PEDIATRICS e321 (2015) [hereinafter Klein et al., Safety of Measles-Containing Vaccines].
25. See id.; see also Febrile Seizure Fact Sheet, NAT'L INST. NEUROLOGICAL DISORDERS & STROKE, http://www.ninds.nih.gov/disorders/febrile-seizures/detail-febrile-seizures.htm (last updated Feb. 23, 2015).
26. Measles, Mumps, and Rubella (MMR) Vaccine, CTRS. FORDISEASE CONTROL & PREVENTION, http://www.cdc.gov/vaccinesafety/Vaccines/MMR (last updated Feb. 17, 2015) [hereinafter Measles, Mumps, and Rubella (MMR) Vaccine].
27. Frequently Asked Questions about Measles in the U.S., CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/measles/about/faqs.html (last updated Mar. 20, 2015).
28. Vaccine Educ. Ctr., A Look at Each Vaccine: Hepatitis B Vaccine, CHILDREN'S HOSP. PHILA., http://vec.chop.edu/service/vaccine-education-center/a-look-at-each-vaccine/hepatitis-b-vaccine.html (last visited Feb. 4, 2015).
29. Gregory L. Armstrong et al., Childhood Hepatitis B Virus Infections in the United States Before Hepatitis B Immunization, 108 PEDIATRICS 1123, 1125 (2001).
30. SEE, E.G., PAUL A. OFFIT, AUTISM'S FALSE PROPHETS: BAD SCIENCE, RISKY MEDICINE, AND THE SEARCH FOR A CURE 55, 176 (2010) [hereinafter OFFIT, AUTISM'S FALSE PROPHETS].
31. Andrew J. Wakefield et al., Eeal-Lymphoid-Nodular Hyperplasia, Nonspecific Colitis, and Pervasive Developmental Disorder in Children, 351 THE LANCET 637 (1998)
32. see retraction of Ileal-Lymphoid-Nodular Hyperplasia, Nonspecific Colitis, and Pervasive Developmental Disorder in Children, THE LANCET, http://www.thelancet.com/journalsAancet/article/PIISO140-6736(97)11096-0/abstract (last visited Apr. 7, 2015).
33. For a discussion of the problems with the study, see Brian Deer, How the Case Against MMR Was Fixed, 342 BMJ 77, 78-79 (2011).
34. See generally SETH MNOOKIN, THE PANIC VIRUS: ATRUE STORYOF MEDICINE, SCIENCE, AND FEAR 106-17 (2012) (discussing the criticism Andrew Wakefield's paper received)
35. For a list of studies examining the safety of vaccines, see Am. Acad. of Pediatrics, Vaccine Safety: Examine the Evidence, available at http://www2.aap.org/immunization/families/faq/vaccinestudies.pdf (last updated Apr. 2013)
36. see also Vaccines and Autism: What You ShouldKnow, VACCINE EDUC. CTR., http://vec.chop.edu/export/download/pdfs/articles/vaccine-education-center/autism.pdf (last visited June 4, 2015).
37. See Gen. Med. Council, Dr. Andrew Jeremy Wakefield: Determination on Serious Misconduct (SPM) and Sanction (May 24, 2010), available at http://www.hriander.com/solved/gmc-wakefield-sentence.pdf.
38. see also Alice Park, Doctor Behind Vaccine-Autism Link Loses License, TIME (May 24, 2010), http://healthland.time.com/2010/05/24/doctor-behind-vaccine-autism-link-loses-license.
39. See OFFIT, AUTISM'S FALSE PROPHETS, supra note 30, at 52, 54. An example of a problematic treatment is chelation, a treatment for the removal of heavy metals from the body, which killed a young autistic boy in 2005. Boy with Autism Dies After Chelation Therapy, NBC NEWS, http://www.nbcnews.com/id/9074208/ns/health-mental-health/t/boy-autism-dies-after-chelation-therapy (last updated Aug. 25, 2005, 3:11 PM).
40. Dr. Offit also addresses the dangers of radical diets removing dairy and gluten for young children. OFFIT, AUTISM'S FALSE PROPHETS, supra note 30, at 122-23. Another alternative treatment offered for curing autism is MMS, Miracle Mineral Solution, which is actually industrial-strength bleach. FDA Warns Consumers of Serious Harm from Drinking Miracle Mineral Solution (MMS), FDA (July 30, 2010), http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm220747.htm.
41. Proponents of MMS recommend that people swallow it, bathe in it, or use it in enemas. MMS on Trial, A Message from Jim Humble, GENESIS II, http://genesis2church.org/mms-protocol-read-this-first.html (last visited Apr. 11, 2015).
42. The FDA warns against using it. Miracle Mineral Solution (MMS): Product as Consumed Produces a Potent Bleach, FDA (Jul. 30, 2010), http://www.fda.gov/Safety/MedWatch/SafetyInformation/SafetyAlertsforHumanMedicalProducts/ucm220756.htm.
43. See, e.g., Eric Fombonne et al., Pervasive Developmental Disorders in Montreal, Quebec, Canada: Prevalence and Links with Immunizations, 118 PEDIATRICS e139 (2006), available at http://pediatrics.aappulications.org/content/118/1xs/e139.full.pdf.html
44. Jon Heron et al., Thimerosal Exposure in Infants and Developmental Disorders: A Prospective Cohort Study in the United Kingdom Does Not Support a Causal Association, 114 PEDIATRICS 577 (2004)
45. William W. Thompson et al., Early Thimerosal Exposure and Neuropsychological Outcomes at 7 to 10 Years, 357 NEW. ENG. J. MED. 1281 (2007).
46. Jeffrey S. Gerber & Paul A. Offit, Vaccines and Autism: A Tale of Shifting Hypotheses, 48 CLINICAL INFECTIOUS DISEASES 456 (2009).
47. Most recently, a meta-analytic review reaffirmed this conclusion. See Luke E. Taylor et al., Vaccines Are Not Associated with Autism: An Evidence-Based Meta-Analysis of Case-Control and Cohort Studies, 32 VACCINE 3623 (2014).
48. See Trent Gaugler et al., Most Genetic Risk for Autism Resides with Common Variation, 46 NATURE GENETICS 881, 881-85 (2014)
49. Rich Stoner et al., Patches of Disorganization in the Neocortex of Children with Autism, 370 NEW ENG. J. MED. 1209, 1209-10 (2014).
50. See Beyond the Autism/Vaccine Hypothesis: What Parents Need to Know about Autism Research, AUTISM Sci. FOUND., http://www.autismsciencefoundation.org/autismandvaccmes.html (last visited June 26, 2015).
51. See generally James G. Hodge, Jr. & Lawrence O. Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 KY. L.J. 831, 851 (2001-02). Boston was the first city to require such immunizations about three decades earlier in 1827. Id. Passing the first general mandatory vaccination law in 1809, Massachusetts was at the forefront of this public health effort in the U.S. Id. at 849 & n.126.
52. See generally Douglas S. Diekema, Personal Belief Exemptions from School Vaccination Requirements, 35 ANN. EEV. PUB. HEALTH 275, 277-78 (2014)
53. Kevin M. Malone & Alan R. Hinman, Vaccination Mandates: The Public Health Imperative and Individual Rights, in PUBLIC HEALTH PRACTICE 338, 344 (Richard A. Goodman et al, eds., 2007).
54. For summaries of the Centers for Diseases Control recommendations, see generally CTR. FOR DISEASE CONTROL & PREVENTION, Recommended Immunization Schedules for Persons Aged 0 Through 18 Years (Jan 1, 2015), http://www.cdc.gov/vaccines/schedules/downloads/child/0-18yrs-child-combined-schedule.pdf (summarizing the CDC vaccination requirements).
55. For detailed summaries of state laws governing vaccination requirements, see generally State School Immunization Requirements and Vaccine Exemption Laws, CTR. FOR DISEASE CONTROL & PREVENTION (Mar. 2015), http://www.cdc.gov/vaccines/imz-managers/laws/state-reqs.html.
56. See also State Information: State Mandates on Immunization and Vaccine-Preventable Diseases, IMMUNIZATION ACTION COALITION (last visited Apr. 12, 2015), http://www.immunize.org/laws. Typically, states require vaccinations for diphtheria, pertussis, tetanus, measles, mumps, rubella, polio, and Hib (Haemophilus Influenzae Type B, a bacterial disease that can lead to bacterial meningitis, pneumonia and other severe complications). All but a small handful of states require hepatitis B and varicella (chicken pox) immunization or evidence of documented history of disease. Id.
57. See Bonnie K. Choi & Mary Lou Manning, The Immunization Status of Home-Schooled Children in America, 24 J. PEDIATRIC HEALTH 42, 44 (2010)
58. Donya Khalili & Arthur Caplan, Off the Grid: Vaccinations Among Home Schooled Children, 24 J.L. MED. & ETHICS. 471, 471-72 (2007). Concerns about increasing rates of nonvaccination in the home-schooled population have led some states to rethink the exclusion of home-schooled children from the vaccination requirements. See, e.g., VA. CODE ANN. § 22.1-271.4 (West 2014) ("[A]ny parent, guardian or other person having control or charge of a child being home instructed, exempted or excused from school attendance shall comply with the immunization requirement⋯ in the same manner and to the same extent as if the child has been enrolled in and is attending school").
59. See, e.g., James Colgrove & Ronald Bayer, Manifold Restraints: Liberty, Public Health, and the Legacy of Jacobson v. Massachusetts, 95 AM. J. PUB. HEALTH 571 (2005)
60. Lawrence O. Gostin, Jacobson v. Massachusetts at 100 Years: Police Power and Civil Liberties in Tension, 95 AM. J. PUB. HEALTH 576 (2005)
61. Ben Horowitz, A Shot in the Arm: What a Modern Approach to Jacobson v. Massachusetts Means for Mandatory Vaccinations During a Public Health Emergency, 60 AM. U. L. REV. 1715 (2011)
62. Wendy K. Mariner et al., Jacobson v. Massachusetts: It's Not Your Great-Great-Grandfather's Public Health Law, 95 AM. J. PUB. HEALTH 581 (2005)
63. Wendy E. Parmet et al., Plenary Program: Jacobson v. Massachusetts, 33 J. L. MED. & ETHICS 24 (2005)
64. Christopher Richins, Jacobson Revisited: An Argument for Strict Judicial Scrutiny of Compulsory Vaccination, 32 J. LEGAL MED. 409 (2011)
65. Michael H. Shapiro, Updating Constitutional Doctrine: An Extended Response to the Critique of Compulsory Vaccination, 12 YALE J. HEALTH POL'Y L. & ETHICS 87, 91-122 (2012)
66. Note, Toward a Twenty-Pirst-Century Jacobson v. Massachusetts, 121 HARV. L. REV. 1820 (2008)
67. Jacobson v. Massachusetts and Public Health Law: Perspectives in 2005, PUB. HEALTH CURRICULUM GUIDE, http://webl.sph.emory.edu/media/JVM/pdfs/public-health-guide.pdf (last visited June 28, 2015).
68. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES & POLICIES 539-40, 546 (3d ed. 2006).
69. Miranda Oshige McGowan, Lifting the Veil on Rigorous Rational Basis Scrutiny, 96 MARQ. L. REV. 377, 388-404 (2012).
70. For a discussion of the role of the courts in scrutinizing the factual bases of legislative findings, see DAVID L. FAIGMAN, CONSTITUTIONAL FICTIONS: A UNIFIED THEORY OF CONSTITUTIONAL FACTS 129-34 (2008)
71. Caitlin E. Borgmann, Rethinking Judicial Deference to Legislative Fact-Finding, 84 IND. L.J. 1 (2009)
72. Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 DUKEL. J. 1169-70 (2001).
73. See generally Bertrall L. Ross II, The State as Witness: Windsor, Shelby County, and Judicial Distrust of the Legislative Record, 89 N.Y.U. L. REV. 2027 (2014).
74. See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 848-49 (1992)
75. Cruzan v. Dir., Missouri Dept. of Health, 497 U.S. 261, 278 (1990)
76. Washington v. Harper, 494 U.S. 210, 221-22 (1990)
77. Eisenstadt v. Baird, 405 U.S. 438, 453-55 (1972).
78. See, e.g., Roe v. Wade, 410 U.S. 113, 152-56 (1973).
79. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003).
80. In Lawrence, the Supreme Court explicitly reversed its 1986 decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and held unconstitutional criminalization of private, consensual, noneconomic intimate relations between two adults.
81. Id. at 578. Despite the fact that Lawrence relied on precedents establishing a fundamental substantive due process right of privacy, the Court characterized the right it protected in Lawrence as a liberty interest, indicating that "liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions." Id. at 562. The Court did not apply strict scrutiny, nor did it explicate its mode of analysis. Indeed, in his Lawrence dissent, Justice Scalia roundly criticized the majority for this failure. Id. at 586 (Scalia, J., dissenting). Indeed, in several privacy-like cases decided by the Court in the early-1990s, the Court likewise declined to identify the right in question as the fundamental right of privacy and applied either a balancing test, see, e.g., Cruzan, 497 U.S. at 278 (1990), or the undue burden test as in Planned Parenthood v. Casey, 505 U.S. at 878 (1992). For an analysis of these trends, see generally David L. Faigman, Madisonian Balancing: A Theory of Constitutional Adjudication, 88 Nw. U. L. REV. 641 (1994).
82. The Free Exercise Clause of the First Amendment was held to be applicable to the states through the doctrine of incorporation. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) ("The fundamental concept of liberty embodied in [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment.").
83. For a discussion of the doctrinal and legislative shifts in free exercise jurisprudence in the second half of the twentieth and early twenty-first centuries, see Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760-62 (2014)
84. Marci A. Hamilton, Employment Division v. Smith at the Supreme Court: The Justices, the Litigants, and the Doctrinal Discourse, 32 CARDOZO L. REV. 1671-74 (2011)
85. Linda C. McClain, Religious and Political Virtues and Values in Congruence or Conflict?: On Smith, Bob Jones University, and Christian Legal Society, 32 CARDOZO L. REV. 1959, 1962-63 (2011).
86. See generally John D. Inazu, The Four Freedoms and the Future of Religious Liberty, 92 N.C. L. REV. 787 (2014)
87. Mark L. Rienzi, The Case for Religious Exemptions-Whether Religion is Special or Not, 127 HARV. L. REV. 1395 (2014).
88. See Emp't Div. v. Smith, 494 U.S. 872, 888-90 (1990)
89. See, e.g., Steven H. Aden & Lee J. Strang, When a "Rule" Doesn't Rule: The Failure of the Oregon Employment Division v. Smith "Hybrid Rights Exception," 108 PENN ST. L. REV. 573-74 (2003)
90. see also Timothy J. Santoli, A Decade After Employment Division v. Smith, Examining How Courts are Still Grappling with the Hybrid Rights Exception to the Free Exercise Clause of the First Amendment, 34 SUFFOLK U. L. REV. 649, 665-68 (2001)
91. James R. Mason, III, Comment, Smith's Free-Exercise "Hybrids" Rooted in Non-Free-Exercise Soil, 6 REGENT U. L. REV. 201, 202, 211 (1995).
92. But see Kyle Still, Smith's Hybrid Rights Doctrine and the Pierce Right: An Unintelligent Design, 85 N.C. L. Rev. 385, 391, 415 (2006) (arguing that rational basis review is appropriate, even in cases of "hybrid rights").
93. See City of Boerne v. Flores, 521 U.S. 507, 536 (1997)
94. See Erwin Chemerinsky, Do State Religious Freedom Restoration Acts Violate the Establishment Clause or Separation of Powers? 32 U.C. DAVIS L. REV. 645-46 (1999)
95. Arnold H. Loewy, Rejecting Both Smith and RFRA, 44 TEX. TECH. L. REV. 231-32 (2011)
96. Christopher C. Lund, Religious Liberty After Gonzales: A Look at State RFRAs, 55 S.D. L. REV. 466-67 (2010).
97. Douglas Laycock, Religious Liberty and the Culture Wars, 2014 U. ILL. L. REV. 839, 844 n.26 (2014).
98. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 163 (2007)
99. Kansas v. Hendricks, 521 U.S. 346,356-57 (1997)
100. Dunn v. White, 880 F.2d 1188,1195 (10th Cir. 1989)
101. Love v. Superior Court, 276 Cal. Eptr. 660, 662 (Cal. 1990).
102. Smallpox Disease Overview, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.bt.cdc.gov/agent/smallpox/overview/disease-facts.asp (last visited Mar. 29, 2015).
103. Thus, as is the subject of this Article, police power considerations such as the communicability of an illness to others may limit an individual's legal authority to reject treatment. Another exception to personal autonomy in health care decisionmaking involves circumstances in which individuals with diagnosed mental disorders can be treated over their objections with psychiatric treatment such as psychotropic medication or involuntary hospitalization. See, e.g., SLOBOGIN ET AL., LAW AND THE MENTAL HEALTH SYSTEM: CIVIL AND CRIMINAL ASPECTS 1082-1121 (6th ed. 2014).
104. Although it is more commonly recognized that psychiatric patients who are not legally competent may have their decisions overridden, patient competence may not be a consideration in settings where the justifying state concerns focus on danger to others. See, e.g., Washington v. Harper, 494 U.S. 210 (1990) (rejecting prison inmate's challenge against policy permitting administration of involuntary psychotropic medication without requiring a prior finding of incompetence)
105. Rogers v. Comm'r, 458 N.E.2d 308 (Mass. 1983) (authorizing administration of psychotropic medication over a competent patient's objection if patient "poses an imminent threat of harm to himself or others" where there is no "less restrictive alternative" to such treatment). Certain less direct effects of nontreatment upon others have been found not to invoke state interests to a sufficient extent to override the right to refuse treatment. Thus, for example, modern jurisprudence does not allow the state to impose lifesaving treatment on a competent adult, even if that person's treatment refusal will lead to that person's death, leaving a child or children without that adult as a parent.
106. See, e.g., Pub. Health Trust of Dade Cnty. v. Wons, 541 So. 2d 96, 97, 101, 103 (Fla. 1989) (declining to find the patient's children's right to be reared by two parents "sufficient to trigger the state interest in protection of innocent third parties" where the patient rejected life-saving blood transfusions for religious reasons).
107. See, e.g., Cruzan v. Dir., Missouri Dep't of Health, 497U.S. 261 (1990) ("The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.")
108. Bouvia v. Super. Ct., 225 Cal. Rptr. 297 (Cal. Ct. App. 1986) ("The right to refuse medical treatment is basic and fundamental [in California].")
109. see also UNIF. HEALTH-CARE DECISIONS ACT § 11 (1993), available at http://www.uniformlaws.org/shared/docs/health%20care%20decisions/uhcda-fmal-93.pdf (individuals are presumed to have capacity to make health care decisions, which includes authority to create advanced directives and identify surrogate decisionmakers).
110. For general discussion of the development and application of these concepts in selected contexts, see Dennis E. Chicon, The Right to "Just Say No": A History and Analysis of the Right to Refuse Antipsychotic Drugs, 53 LA. L. REV. 283 (1992) (psychiatric patients)
111. Lois Shepherd, The End of End-of-Life Law, 92 N.C. L. REV. 1693 (2014) (end-of-life decisions).
112. Schloendorff v. Soc'y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914).
113. Thus, for example, immunization mandates for adults grounded in the police power, such as certain requirements that health care workers and college students be vaccinated, have withstood constitutional scrutiny when challenged. See infra note 104. Although the use of quarantine in response to cases of Ebola in the United States has been controversial, many commentators assert that narrowly-tailored application of this intervention is constitutional. See, e.g., Sarah Pope et al., Protecting Civil Liberties During Quarantine and Isolation in Public Health Emergencies, LAW PRACTICE TODAY (Apr. 2011), http://www.americanbar.org/publications/law-practice-today-homeAaw-practice-today-archive/aprilll/protecting-civil-liberties-during-quarantine-and-isolation-in-public-health-emergencies.html.
114. For an examination of the complex and unresolved legal issues affecting quarantine powers, see, e.g., Jared P. Cole, Federal and State Quarantine and Isolation Authority, CONG. RESEARCH SERV. (Oct. 9, 2014), https://www.fas.org/sgp/crs/homesec/RL33201.pdf.
115. "Parens patriae, literally 'parent of the country,' is the government's power and responsibility, beyond its police power over all citizens, to protect, care for, and control citizens who cannot take care of themselves⋯." Natalie Loder Clark, Parens Patriae and a Modest Proposal for the Twenty-first Century: Legal Philosophy and a New Look at Children's Welfare, 6 MICH. J. GENDER & L. 381, 382 (2000). More generally, the state's parens patriae power refers to its paternalistic authority to regulate the lives of individuals to protect and promote those persons' own welfare. Parens patriae regulations are typically aimed at those persons viewed as unable to protect and care for themselves. Children are viewed as the quintessential population requiring such protection. Thus, much of state regulation affecting children is justified, at least in part, by this state authority. See id. at 397-98.
116. By contrast, adults with mental disorders whose competence is uncertain or impaired, may have treatment preferences overridden based, in part, on parens patriae considerations. See, e.g., Jennifer Colangelo, The Right to Refuse Treatment for Mental Illness, 5 RUTGERS J. L. & PUB. POL'Y 492, 498 (2008)
117. Douglas S. Stransky, Civil Commitment and the Right to Refuse Treatment-Resolving Disputes from a Due Process Perspective, 50 U. MIAMI L. REV. 413, 424-26 (1996).
118. There exist several exceptions to the focus on children as targets for vaccination mandates. Those exceptions include policies mandating immunization of college students and adult health care workers, as well as policies giving government the authority to mandate vaccination during public health emergencies. For example, many states require that college students be immunized for meningitis, although there is variability in the type of institutions and categories of students encompassed by those mandates. See State Information: Meningococcal Prevention Mandates for Colleges and Universities, IMMUNIZATION ACTION COAL., http://www.immunize.org/laws/menin.asp (last updated Jan. 15, 2015).
119. Some states require immunization for additional diseases. See, e.g., Immunization Handbook for New York State Post-Secondary Institutions: Section I-Requirements, N.Y. STATE DEP'T OF HEALTH, https://www.health.ny.gov/prevention/immunization/handbook/section-l-requirements.htm (last visited June 28, 2012).
120. College and university policies may require additional vaccinations beyond legal requirements. Although the CDC recommends that healthcare workers be fully immunized against most of the same diseases as it mandates for children, and annually against influenza, see Recommended Vaccines for Healthcare Workers, CTRS. FOR DISEASE CONTROL & PREVENTION (Apr. 15, 2015), http://www.cdc.gov/vaccines/adults/rec-vac/hcw.html, these immunizations are not routinely compelled by state law. Some states attempt to regulate vaccination of health care workers by requiring health care facilities and institutions to develop vaccination requirements for particular categories of employees.
121. See Megan C. Lindley et al., Assessing State Immunization Requirements for Healthcare Workers and Patients, 32 AM. J. PREV. MED. 459 (2007).
122. A recent review found that twenty states had policies focusing on influenza vaccination. See Alexandra M. Stewart & Marisa A. Cox, Influenza Vaccination of the Health Care Workforce: Developing a Model State Law, GEO. WASH. UNIV. SCH. OF PUB. HEALTH & HEALTH SERVS. 1, 6 (2011), available at http://pubhchealth.gwu.edu/departments/healthpolicy/influenza/MODEL%20LAW%20REPORT.pdf.
123. States vary in permissible exemptions and how they instruct facilities and institutions to address employee noncompliance. See id. at 18-22. In 2009, New York mandated health care workers at a range of facility types to be vaccinated for influenza and allowed only medical exemptions. See Jared P. Cole & Kathleen S. Swendiman, Mandatory Vaccinations: Precedent and Current Laws, CONG. RESEARCH SERV. 1, 5 (May 21, 2014), http://www.fas.org/sgp/crs/misc/RS21414.pdf.
124. Legal challenges ensued, but were made moot by a vaccine shortage that led the state to rescind the requirements. Id. For further discussion of such state requirements and legal challenges, see for example, Wendy E. Parmet, Pandemic Vaccines-The Legal Landscape, 362 NEW ENG. J. MED. 1949 (2010).
125. Some healthcare organizations have required employees to be immunized against specified diseases, even when not so required by state law. See Cole & Swendiman, supra, at 6-7. Although challenged by some employees, these policies have been upheld by reviewing courts. Id.; see also Alexandra M. Stewart, Mandatory Vaccination of Health Care Workers, 361 NEW ENG. J. MED. 2015 (2009)
126. Alexandra M. Stewart & Sara Rosenbaum, Vaccinating the Health-Care Workforce: State Law vs. Institutional Requirements, 125 PUB. HEALTH REPORTS 615 (2010). Some states also have legal provisions authorizing governmental authorities to mandate vaccination during a public health emergency. See Parmet, supra, at 1949; see also Cole & Swendiman, supra at 7-8.
127. See Lois A. Weithorn, Envisioning Second-Order Change in America's Responses to Troubled and Troublesome Youth, 33 HOFSTRA L. REV. 1305, 1401-07 (2005) [hereinafter Weithorn, Envisioning].
128. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925)
129. Meyer v. Nebraska, 262 U.S. 390 (1923).
130. For discussion of the current status and future of the "Meyer-Pierce Right," see, for example, Jennifer Adams Emerson, "Who's in a Family?": Parental Rights and Tolerance-Promoting Curriculum in Early Elementary Education, 40 J.L. & EDUC. 701, 705-10 (2011).
131. See, e.g., Combs v. Homer Ctr. Sch. Dist., 540 F.3d 231 (3d Cir. 2008) (upholding Pennsylvania law that authorizes state educational superintendent review of home-schooled children's educational progress against parental claims of unconstitutionality); Parker v. Hurley, 514 F.3d 87, 91-92 (1st Cir. 2008) (upholding Massachusetts' school district's policy of exposing children to books designed to promote tolerance toward gays and lesbians, without providing opt-out choice or prior notice to parents).
132. See, e.g., Parham v. J.R., 442 U.S. 584, 602 (1979) (observing that the law presumes that minors' immaturity, inexperience, and undeveloped capacity for judgment limit their ability to direct their own lives).
133. See, e.g., Bellotti v. Baird, 443 U.S. 622,634-39 (1979) ("We have recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.").
134. See, e.g., Elizabeth S. Scott, The Legal Construction of Adolescence, 29 HOFSTRA L. REV. 547, 566-76 (2000).
135. Jacobson V. Massachusetts, 197 U.S. 11 (1905).
136. See Daniel S. Reich, Modernizing Local Responses to Public Health Emergencies: Bioterrorism, Epidemics, and the Model State Emergency Health Powers Act, 19 J. CONTEMP. HEALTH L. & POL'Y 379, 402-03 (2003) ("While forcing treatment upon an unwilling competent adult in order to preserve that person's own life has been held a violation of the person's right to refuse treatment, courts are willing to allow compulsory treatment where the person poses a danger to others."); supra notes 98-103 and accompanying text.
137. See Parham v. J.R., 442 U.S. 584, 602 (1979)
138. see also Jennifer L. Rosato, Using Bioethics Discourse to Determine When Parents Should Make Health Care Decisions for their Children: Is Deference Justified?, 73 TEMP. L. REV. 1 (2000).
139. In Troxel v. Granville, 530 U.S. 57, 63-66 (2000), the Court elaborated upon "the fundamental right of parents to make decisions concerning the care, custody, and control of their children[,]" citing its application in the context of parents' "companionship, care, custody, and management of⋯ children" and to "direct the education and upbringing of one's children."
140. For example, in Troxel v. Granville, the Court held that a custodial mother's fundamental right to control the upbringing of her children creates a presumption that her judgments regarding her child's best interests deserve deference. Therefore, a family court must accord her preferences "special weight," in considering whether to award grandparents certain visitation rights over parental objection. 530 U.S. at 68-74. The Court did not apply strict scrutiny analysis to either a facial or "as applied" review of the statute. Id. at 74-75. In Bellotti v. Baird, 442 U.S. 622 (1979)
141. Parham v. J.R., 442 U.S. 584 (1979), the Court applied a balancing test to its consideration of the respective interests of parents, minors, and the state in the context of minors' challenges to state statutes governing consent to abortion and psychiatric hospitalization, respectively.
142. See, e.g., Newmark v. Williams, 588 A.2d 1108 (Del. 1991)
143. Custody of a Minor, 379 N.E.2d 1053 (Mass. 1978). Parents have an obligation, laid out in each state's child maltreatment statutes, to provide their children with adequate medical care. See, e.g., CAL. WELF. & INST. CODE § 300(b)(1) (West 2014) (juvenile court may determine a child is a dependent of the court if "the child has suffered, or there is a substantial risk that the child will suffer, serious harm or illness⋯ by the willful or negligent failure of the parent or guardian to provide the child with adequate⋯ medical treatment⋯."). For a summary and analysis of medical neglect laws, see SAMUEL M. DAVIS ET AL., CHILDREN IN THE LEGAL SYSTEM 573-618 (5th ed. 2014s).
144. See, e.g., Newmark v. Williams, 588 A.2d 1108 (Del. 1991)
145. See, e.g., CAL. WELF. & INST. CODE § 300(b)(1) (2015) (giving deference to parental decisions to pursue spiritual rather than traditional medical treatment, except where the state determines it must override parental choice as "necessary to protect the child from suffering serious physical harm or illness"); see also OKLA. STAT. tit. 10A, § 1-6-105(a)(4) (2014) ("Nothing contained in this paragraph shall prevent a court from immediately assuming custody of a child⋯ and ordering whatever action may be necessary, including medical treatment, to protect the child's health or welfare."). For a compilation of current state abuse and neglect statutes, including provisions governing religious exemptions to medical treatment, see Definitions of Child Abuse and Neglect, CHILD WELFARE INFORMATION GATEWAY 1, 5-91 (Apr. 20, 2014), https://www.childwelfare.gov/pubPDFs/define.pdf.
146. For a discussion of state policies and their evolution, see, for example, DAVIS ÉTAL, CHILDREN IN THE LEGAL SYSTEM, supra note 124, at 612-15. For a discussion of the history and current status of religious exemption statutes, see, for example, Shirley Darby Howell, Religious Treatment Exemption Statutes: Betrayest Thou Me with a Statute?, 14 SCHOLAR 945 (2012).
147. For additional commentary, see, for example, James G. Dwyer, Spiritual Treatment Exemptions to Child Medical Neglect Laws: What We Outsiders Should Think, 76 NOTRE DAME L. REV. 147 (2000) [hereinafter Dwyer, Spiritual Treatment Exemptions]
148. Jennifer L. Rosato, Putting Square Pegs in A Round Hole: Procedural Due Process and the Effect of Faith Healing Exemptions on the Prosecution of Faith Healing Parents, 29 U.S.F. L. REV. 43, 64 (1994).
149. See, e.g., Hermanson v. State, 604 So.2d 775 (Fla. 1992).
150. In Hermanson, the child suffered from juvenile diabetes and would have likely been successfully treated if her parents had not refused standard medical care. The Florida Supreme Court held that the parents were exempt from criminal liability for her avoidable death because of a civil statutory religious exemption. Although the exemption in the civil statute did not create an exemption from criminal liability, the court agreed with the parents that the interrelationship of the civil and criminal statutes was sufficiently unclear to laypersons (and some legal observers as well) to deprive the parents of due process if criminally prosecuted because of insufficiently fair notice as to possible criminal liability. Id. at 777, 781-82; see also Commonwealth v. Twitchell, 617 N.E.2d 609, 619 (Mass. 1993) (same, with the further complication of a misleading Attorney General interpretation of the law).
151. Other states have sustained criminal convictions under similar circumstances. See, e.g., Walker v. Superior Court, 763 P.2d 852 (Cal. 1988).
152. The development and evolution of statutes exempting parents from liability for religiously-based treatment refusals is complex, see discussion in DAVIS ET AL, supra note 124, at 612-13. There also exists substantial commentary critiquing the continued existence of the remaining exemptions. See, e.g., Ashley Dose, Government Endorsement of Living on a Prayer Religious Exemptions from the Duty to Provide Medical Treatment for Children, 30 J. LEGAL MED. 515 (2009) [hereinafter Dose, Government Endorsement]
153. James G. Dwyer, The Children We Abandon: Religious Exemptions to Child Welfare and Education Laws as Denials of Equal Protection to Children of Religious Objectors, 74 N.C. L. REV. 1321 (1996) [hereinafter Dwyer, The Children We Abandon].
154. Arguably, however, after Employment Division v. Smith, state statutes permitting parents to subject their children to substantial health dangers on religious grounds are not constitutionally required, particularly in light of the state's strong interest in protecting the health and welfare of the child.
155. See, e.g., B. Jessie Hill, Whose Body? Whose Soul? Medical Decision-Making on Behalf of Children and the Free Exercise Clause Before and After Employment Division v. Smith, 32 CARD. L. REV. 1857 (2011)
156. See LAWRENCE KOTIN & WILLIAM F. AIRMAN, LEGAL FOUNDATIONS OF COMPULSORY SCHOOL ATTENDANCE 221 (1980).
157. see also Kay P. Kindred, Of Child Welfare and Welfare Reform: The Implications for Children When Contradictory Policies Collide, 9 WM. & MARY J. WOMEN & L. 413, 455-56 (2003) (addressing dual goals underlying child protection system).
158. The Supreme Court's analysis of the competing interests first emphasized that deference to parental authority is the default in the balance between parents and state: It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter. Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
159. The Court proceeded, noting that when parental conduct does not adequately protect children's welfare, the state may step in to promote children's best interests pursuant to is parens patriae authority: But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth's well-being, the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Id. Finally, the Court explained that the police power further empowers the state to intervene in the family when parental action or inaction threatens the general welfare, whether through creation of direct dangers to the community (citing nonvaccination), or resulting from inadequate socialization of children. Its reference to the state's authority to compel vaccination appears at the nexus of its discussions of the parens patriae and police power authorities. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. 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. The state's authority over children's activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment. A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers within a broad range of selection⋯. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state's police power, whether against the parents claim to control of the child or one that religious scruples dictate contrary action. Prince v. Massachusetts, 321 U.S. at 166-69.
160. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 221 (1972) ("The State advances two primary arguments in support of its system of compulsory education. It notes, as Thomas Jefferson pointed out early in our history, that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and self-sufficient participants in society.").
161. See, e.g., JAMES D. SCHMIDT, INDUSTRIAL VIOLENCE AND THE LEGAL ORIGINS OF CHILD LABOR (2010)
162. see also Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence: The Use and Abuse of Child Maltreatment Statutes, 53 HASTINGS L.J. 1, 51-52 (2001) (discussing workplace harms and conceptualizing various forms of child labor as child maltreatment).
163. see also Stephanie A. Koltookian, Some (Don't) Like it Hot: The Use of the "Hot Goods" Injunction in Perishable Agriculture, 100 IOWA L. REV. 1841, 1851-52 (2015) (noting child labor law exceptions in the agriculture industry)
164. Jessica Krieg, There's No Business Like Show Business: Child Entertainers and the Law, 6 U. PA. J. LAB. & EMP. L. 429 (2004) (noting exceptions to child labor laws for children working in the entertainment industry).
165. See, e.g., Vaccination Exemptions, THE HISTORY OF VACCINES, http://www.historyofvaccines.org/content/articles/vaccination-exemptions (last updated July 31, 2014).
166. Recent studies have indicated that states vary substantially in the stringency of the standards and procedures for obtaining medical exemptions. See, e.g., Stephanie Stadlin et al., Medical Exemptions to School Immunization Requirements in the United States-Association of State Policies with Medical Exemption Rates (2004-2011), 206 J. INFECTIOUS DISEASES 989 (2012). Some commentators assert that greater monitoring is needed to ensure that these exemptions are only available to children for whom they are medically necessary. See id.
167. See States with Religious and Philosophical Exemptions from School Immunizations Requirements, NAT'L CONF. ST. LEGISLATURES, http://www.ncsl.org/issues-research/health/school-immunization-exemption-state-laws.aspx (last updated June 26, 2015). Beginning July 1, 2016, when the recently-passed California Senate Bill 277 takes effect, only forty-seven states will provide a religious exemption. See infra notes 185, 336 and accompanying text.
168. Workman v. Mingo Cnty. Bd. of Educ., 419 F. App'x 348 (4th Cir. 2011).
169. Id. at 352-57. The court noted the parties' disagreement as to the appropriate level of scrutiny to be applied in the analysis, acknowledging Smith and the possible hybrid-rights exception. See supra notes 82-94 and accompanying text. Rather than decide what level of scrutiny was due, the court determined that the mandatory vaccination law at issue in West Virginia withstood even strict scrutiny. Workman, 419 F. App'x. at 353. The court's application of strict scrutiny, however, appears analytically incomplete. While the court provides a thorough and persuasive analysis of the state's compelling interest in mandating vaccination of school prior to school entry, it fails to analyze whether the state's means for achieving that interest are necessary, or the narrowest possible, to achieve that end. See supra note 74 for discussion of the analytic requirements of strict scrutiny review. This omission is particularly unfortunate, because it is the means-vaccination mandates without the plaintiffs' sought-after exemptions-that constitute the most contentious aspect of this dispute. It is noteworthy that, despite the non-publication of the case, a 2006 revision to Federal Rules of Appellate Procedure 32.1 permits citation to this and other unpublished decisions. Yet, the incomplete nature of the analysis creates a substantive limitation on the value of the precedential value of the application of strict scrutiny used in the case. See FED. R. APP. P. 32.1, available at http://www.nonpublication.Com/32.1.
170. HTML; see also Notice from Clerk Patricia S. Connor for the Fourth Circuit Court of Appeals (June 1, 2006), available at http://www.nonpublication.com/4thCirRule.pdf.
171. Brown v. Stone, 378 So.2d 218 (Miss. 1979).
172. See, e,g., Dorit Rubinstein Reiss, Thou Shalt Not Take the Name of the Lord Thy God in Vain: Use and Abuse of Religious Exemptions from School Immunization Requirements, 65 HASTINGS L.J. 1551, 1556-57 (2014) [hereinafter Reiss, Thou Shall Not Take the Name of the Lord Thy God in Vain] ; see also Blank et al., supra note 8, at 1285. For a table listing the types of vaccine exemption policies in the fifty states and the District of Columbia, with statutory cites, see NAT'L CONF. OF ST. LEGISLATORS, supra note 139.
173. Allan J. Jacobs, Do Belief Exemptions to Compulsory Vaccination Programs Violate the Fourteenth Amendment?, 42 U. MEM. L. REV. 73 (2011).
174. See Dalli v. Bd. of Educ, 267 N.E.2d 219, 221 (Mass. 1971) (holding that state statute restricting religious exemption to those who subscribe to the "tenets and practice of a recognized church or religious denomination" was unconstitutional under the First and Fourteenth Amendments of the U.S. Constitution)
175. see also McCarthy v. Boozman, 212 F. Supp. 2d 945 (W.D. Ark. 2002) (holding religious exemption provision unconstitutional, while sustaining statutory immunization requirements), appeal dismissed
176. Boone v. Boozman, 217 F.Supp.2d 938 (E.D. Ark. 2002) (same), appeal dismissed
177. Sherr v. Northport-East Northport Union Free Sch. Dist, 672 F. Supp. 81, 91-92 (E.D.N.Y. 1987) (holding that New York's statute restricting religious exemption to "bona fide members of a recognized religious organization" whose doctrines oppose vaccination violates Establishment and Free Exercise Clauses of the First Amendment).
178. See, e.g., N.Y. PUB. HEALTH LAW § 2164(9) (2015) (exempting from immunization requirements "children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required"); Phillips v. City of N.Y., 775 F.3d 538, 540-41, 543 (2d Cir. 2015) (upholding constitutionality of immunization statute in case of child denied religious exemption and excluded from school during chicken pox outbreak)
179. Caviezel v. Great Neck Pub. Sch., 701 F. Supp. 414 (E.D.N.Y. 2010) (applying religious exemption to New York's immunization statute).
180. Turner v. Liverpool Cent. Sch., 186 F. Supp. 2d 187, 188-92 (N.D.N.Y. 2002).
181. See NAT'L CONF. OF ST. LEGISLATORS, supra note 139. Another review, however, examining exemption policies through 2012, concluded that twenty-two states had philosophical exemptions. Denise F. Lillvis et al., Power and Persuasion in the Vaccine Debates: An Analysis of Political Efforts and Outcomes in the United States, 1998-2012, 92 MILBANK Q. 475, 481 (2014). The latter review characterizes some state laws as allowing both religious and philosophical exemptions because the language is sufficiently broad or ambiguous to encompass, or potentially encompass, both types. Id. at 480. As noted above, see supra note 139, the recent passage of legislation in California eliminates the personal belief exemption commencing July 1, 2016. See also infra notes 185, 336 and accompanying text. Legislators in several other states are also working to tighten exemption laws. See infra notes 337-39.
182. See Jacobson v. Massachusetts, 197 U.S. 11, 12 (1905).
183. Paul Fine et al., "Herd Immunity": A Rough Guide, 52 VACCINES 911, 912, 914-15 (2011)
184. Paul E. M. Fine, Herd Immunity: History, Theory, Practice, 15 EPIDEMIOLOGICAL REVS. 265, 296 (1993).
185. Children are in close physical proximity with one another in school, and diseases can spread easily from child to child. Because of that proximity, outbreaks are particularly likely to occur in schools. Muireann Brennan et al., Evidence for Transmission of Pertussis in Schools, Massachusetts, 1996: Epidemiologic Data Supported by Pulsed-Field Gel Electrophoresis Studies, 181 J. INFECTIOUS DISEASES 201, 214 (2000)
186. Dieter Schnezle, An Age-Structured Model of Pre- and Post-Vaccination Measles Transmission, 1 MATHEMATICAL MED. & BIOLOGY 169 (1984).
187. For these reasons among others, school immunization requirements were adopted as early as the nineteenth century. See, e.g., Duffield v. Williamsport Sch. Dist., 29 A. 742 (Pa. 1894).
188. The Supreme Court held such policies to be constitutional in 1922. See generally Zucht v. King, 260 U.S. 174, (1922).
189. Some states, such as California, apply childhood vaccination requirements to daycare and preschool settings to address the susceptibility of children to infection in such congregate settings, even before entry into elementary schools. See CAL. HEALTH & SAFETY CODE § 120335 ("The governing authority shall not unconditionally admit any person as a pupil of any private or public elementary or secondary school, child care center, day nursery, nursery school, family daycare home, or development center, unless, prior to his or her first admission to that institution, he or she has been fully immunized."). Other states may not require vaccination for entry to such programs prior to elementary school. By contrast, some states, such as Ohio, do not require vaccination prior to elementary school entry. See, e.g., OHIO REV. CODE ANN. § 3313.671 (2015). Delaying vaccination until elementary school entry is problematic in that children under five are at higher risk of complication if infected with certain vaccine-preventable diseases than are older children, and immunization at the age of five or six does not protect against these risks. Pertussis (e.g. whooping cough) is most dangerous for infants, as contrasted with older children. See PAUL A. OFFIT & CHARLOTTE A. MOSER, VACCINES AND YOUR CHILD: SEPARATING FACT FROM FICTION 123 (2011). Children under five are more likely to suffer complications from measles than are older children. Id. at 166. Most Hib disease cases (about 90%) occur in children under five years old. Id. at 141-44.
190. Emp't Div. v. Smith, 494 U.S. 872, 888-89 (1990).
191. See, e.g., Cent. Rabbinical Cong. of U.S. & Canada v. New York City Dep't of Health & Mental Hygiene, 763 F.3d 183, 186 (2d Cir. 2014)
192. John D. Inazu, More is More: Strengthening Free Exercise, Speech, and Association, 99 MINN. L. REV. 485, 498-99 (2014) ("Smith also introduced another significant doctrinal change in free exercise law: the move from strict scrutiny to rational basis scrutiny for claims challenging generally applicable laws.").
193. But see Alan E. Garfield, The Mischief of Cohen v. Cowles Media Co., 35 GA. L. REV. 1087, 1109 (2001).
194. In his concurrence, in Barnes v. Glen Theatre, Inc., which involved free speech claims, rather than free exercise claims, Justice Scalia opined: "[i]n my view, however, the challenged regulation must be upheld, not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all." 501 U.S. 560, 572 (1991) (Scalia, J., concurring) (emphasis added).
195. He continued by referring to Smith as precedent for this approach: We have explicitly adopted such a regime in another First Amendment context: that of free exercise. In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L.Ed.2d 876 (1990), we held that general laws not specifically targeted at religious practices did not require heightened First Amendment scrutiny even though they diminished some people's ability to practice their religion. "The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, 'cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development."' Id., at 885 [110 S. Ct., at 1603], quoting Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 451,108 S. Ct. 1319,1326, 99 L.Ed.2d 534 (1988)
196. see also Minersville School District v. Gobitis, 310 U.S. 586, 594-595, 60 S. Ct. 1010, 1012-1013, 84 L.Ed. 1375 (1940) (Frankfurter, J.) ("Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.").
197. There is even greater reason to apply this approach to the regulation of expressive conduct. Relatively few can plausibly assert that their illegal conduct is being engaged in for religious reasons; but almost anyone can violate almost any law as a means of expression. In the one case, as in the other, if the law is not directed against the protected value (religion or expression) the law must be obeyed. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 579 (1991) (Scalia, J., concurring).
198. Justice Scalia's interpretation of Smith's requirements are supported by the fact that in analyzing Smith's claims, the Court did not apply rational basis review. Rather, once the Court concluded that the peyote prohibition at issue in the case was a generally applicable and constitutional criminal prohibition, it stated conclusively that the denial of Mr. Smith's employment compensation, which relied on the criminal nature of Smith's peyote use, was also constitutional. Emp't Div. v. Smith, 494 U.S. 872, 890 (1990).
199. see also Judith G. McMullen, Behind Closed Doors: Should States Regulate Homeschooling?, 54 S.C. L. REV. 75, 98-100 (2002)
200. Timothy Brandon Waddell, Bringing it all Back Home: Establishing a Coherent Constitutional Framework for the Re-regulation of Homeschooling, 63 VAND. L. REV. 541, 560-61, 570 n.202 (2010).
201. See, e.g., Paul A. Alarcón, Recognizing and Regulating Home Schooling in California: Balancing Parental and State Interests in Education, 13 CHAP. L. REV. 391, 395, 398-99, 405 (2010).
202. See generally Ralph D. Mawdsley, Parental Rights and Home Schooling: Current Home Schooling Litigation, 135 ED. LAW REP. 313 (1999).
203. See Wisconsin v. Yoder, 406 U.S. 205, 205-07 (1972).
204. In fact, courts have typically refused to extend Yoder to grant requests for religious exemptions to school attendance requirements heyond the facts of the case. See, e.g., James G. Dwyer, The Good, the Bad, and the Ugly of Employment Division v. Smith for Family Law, 32 CARDOZO L. REV. 1781, 1783 (2011) (noting that "lower courts⋯ have read the Yoder holding as severely limited in scope, not simply confined to conflicts over education hut actually confined to just the Amish and groups very much like the Amish.")
205. Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38 HARV. J. L. & GENDER 35, 53 (2015) (noting that lower courts have "systematically found ways to distinguish Yoder when other religiously motivated actors sought to remove their children from school.").
206. Roe v. Wade, 410 U.S. 113, 154 (1973) (citing Jacobson and vaccination policies for the proposition that "[t]he privacy right⋯ cannot be said to be absolute⋯. The Court has refused to recognize an unlimited right of this kind in the past.").
207. Cruzan v. Dir., Missouri Dep't. of Health, 497 U.S. 261, 278 (1990) (citing Jacobson and discussing vaccination policies: "The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.").
208. For the language of the final bill signed by the Governor, see SB-277, Public Health: Vaccination, CAL. LEGISLATIVE INFO., https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill-id=201520160SB277.
209. For a discussion of the bill's purpose and primary provision, see the summary by one of the bill's proponents, State Sen. Richard Pan, Senate Bill 277 Introduced to End California's Vaccine Exemption Loophole (Feb. 19, 2015), http://sd06.senate.ca.gov/news/2015-02-19-senate-bill-277-introduced-end-california%E2%80%99s-vaccine-exemption-loophole.
210. Dorit Rubinstein Reiss, Vaccines, Measles, and Rights, 2 WAKE FOREST L. REV. 138 (2015).
211. see also Michaeleen Doucleff, How Vaccine Fears Fueled The Resurgence of Preventable Diseases, NPR (Jan. 25, 2014, 1:13 PM), http://www.npr.org/blogs/health/2014/01/25/265750719/how-vaccine-fears-fueled-the-resurgence-of-preventable-diseases
212. Tasneem Raja & Chris Mooney, How Many People Aren't Vaccinating Their Kids in Your State?, MOTHER JONES (Feb. 17, 2014 7:00 AM), http://www.motherjones.com/environment/2014/02vaccine-exemptions-states-pertussis-map.
213. See Press Release: Measles in the United States Reach 20-Year High, CTRS. FORDISEASE CONTROL & PREVENTION, (May 29, 2014), available at http://www.cdc.gov/media/releases/2014/p0529-measles.html.
214. For discussions of herd immunity, see Fine et al., supra note 159. See generally Oxford Vaccine Group, Univ. of Oxford, Herd Immunity, VACCINE KNOWLEDGE PROJECT, http://www.ovg.ox.ac.uk/herd-immunity (last visited Jan. 20, 2015).
215. Jason M. Glanz et al., Parental Refusal of Varicella Vaccination and the Associated Risk of Varicella Infection in Children, 164 ARCH. PEDIATRICS & ADOLESCENT MED. 66, 68 (2010)
216. Saad B. Orner et al., Vaccine Refusal, Mandatory Immunization, and the Risks of Vaccine-Preventable Diseases, 360 NEW ENG. J. MED. 1981, 1981, 1983-84 (2009)
217. Amy Parker Fiebelkorn et al., Measles in the United States during the Postelimination Era, 202 J. INFECTIOUS DISEASES 1520, 1524, 1527 (2010)
218. Amy A. Parker et al., Implications of a 2005 Measles Outbreak in Indiana for Sustained Elimination of Measles in the United States, 355 NEW. ENG. J. MED. 447, 452 (2006)
219. David E. Sugerman et al., Measles Outbreak in a Highly Vaccinated Population, San Diego, 2008: Role of the Intentionally Undervaccinated, 125 PEDIATRICS 747, 747, 753-54 (2010).
220. Daniel R. Feikin et al., Individual and Community Risks of Measles and Pertussis Associated with Personal Exemptions to Immunizations, 284 JAMA 3145, 3145 (2000)
221. Jennifer L. Richards et al., Nonmedical Exemptions to Immunization Requirements in California: A 16-Year Longitudinal Analysis of Trends and Associated Community Factors, 31 VACCINE 3009, 3012 (2013)
222. Daniel A. Salmon et al., Factors Associated With Refusal of Childhood Vaccines Among Parents of School-aged Children, 159 ARCH. PEDIATR. ADOLESC. MED. 470, 470 (2005)
223. Joseph W. Thompson et al., Impact of Addition of Philosophical Exemptions on Childhood Immunization Rates, 32 AM. J. PREVENTIVE MED. 194, 200 (2007)
224. Y. Tony Yang & Vicky Debold, A Longitudinal Analysis of the Effect of Nonmedical Exemption Law and Vaccine Uptake on Vaccine-Targeted Disease Rates, 104 AM. J. PUB. HEALTH 371, 375-76 (2014).
225. The CDC publishes a list of medical contraindications to vaccination. Chart of Contraindications and Precautions to Commonly Used Vaccines, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/vaccines/recs/vac-admin/contramdications-vacc.htm (last visited Apr. 15, 2015)
226. as well as a discussion of common mistakes about contraindications: Conditions Commonly Misperceived as Contraindications to Vaccination, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/vaccines/recs/vac-admin/contraindications-misconceptions.htm (last visited Apr. 15, 2015).
227. Philip J. Smith et al., Children Who Have Received No Vaccines: Who Are they and Where Do they Live?, 114 PEDIATRICS 187 (2004).
228. To view the latest data available, see Morbidity and Mortality Weekly Report, National, State, and Local Area Vaccination Coverage Among Children Aged 19-35 Months-United States, 2011, tbl.1, CDC, http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6135al.htm (last visited Apr. 15, 2015).
229. Allison Kennedy et al., Vaccine Attitudes, Concerns, and Information Sources Reported by Parents of Young Children: Results From the 2009 HealthStyles Survey, 127 PEDIATRICS S92, S95 (2011).
230. Jason M. Glanz et al., A Population-Based Cohort Study of Undervaccination in 8 Managed Care Organizations Across the United States, 167 JAMA PEDIATRICS 274, 277 (2013).
231. Ctrs. for Disease Control & Prevention, National, State, and Local Area Vaccination Coverage Among Children Aged 19-35 Months-United States, 2011, 61 MORBIDITY & MORTALITY WKLY. REP. 689, 689 (2012), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6135al.htm.
232. Flu Vaccination Coverage, United States, 2011-12 Influenza Season, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/flia/professionals/vaccination/coverage-1112estimates.htm (last visited Apr. 15, 2015).
233. Please note that we do not address the more recent HPV vaccine in this article in light of our focus on vaccination prior to school entry. The CDC recommends administering the HPV vaccine at ages 11 and 12. See HPV Vaccine-Questions and Answers, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/vaccines/vpd-vac/hpv/vac-faqs.htm (last visited June 29, 2014).
234. The rates of coverage for that vaccine are much lower than is reported for other vaccines: most recently at 32% for 13-17 year olds. See Lauri E. Markowitz et al., Reduction in Human Papillomavirus (HPV) Prevalence Among Young Women Following HPV Vaccine Introduction in the United States, National Health and Nutrition Examination Surveys, 2003-2010, 208 J. INFECTIOUS DISEASES 385, 385 (2013).
235. Although medical evidence supports the safety (see, e.g., Nicola P. Klein et al., Safety of Quadrivalent Human Papillomavirus Vaccine Administered Routinely to Females, 166 ARCH. PEDIATRICS & ADOLESCENT MED. 1140, 1140 (2012))
236. efficacy of the HPV vaccine, see, e.g., Hammad Ali et al., Genital Warts in Young Australians Five Years into National Human Papillomavirus Vaccination Programme: National Surveillance Data, BMJ (Apr. 18, 2013), http://www.bmj.com/content/346/bmj.f2032.full.pdf+html, some of the controversies raise additional issues beyond the scope of the current Article.
237. E. Allison Hagood & Stacy Mintzer Herlihy, Addressing Heterogeneous Parental Concerns About Vaccination with a Multiple-Source Model: A Parent and Educator Perspective, 9 HUMAN VACCINES & IMMUNOTHERAPEUTICS 1790, 1790 (2013).
238. See, e.g., Chemtrail Conspiracy Theory, WIKIPEDIA, http://en.wikipedia.org/wiki/Chemtrail-conspiracy-theory (last visited June 14, 2015) ("According to the chemtrail conspiracy theory, long-lasting trails left in the sky by high-flying aircraft are chemical or biological agents deliberately sprayed for sinister purposes undisclosed to the general public").
239. See P. Davies et al., Antivaccination Activists on the World Wide Web, 87 ARCHIVES DISEASE IN CHILDHOOD 22, 22 (2002)
240. Robert M. Jacobson et al., A Taxonomy of Reasoning Flaws in the Anti-Vaccine Movement, 25 VACCINE 3146, 3146 (2007)
241. Anna Kata, A Postmodern Pandora's Box: Anti-vaccination Misinformation on the Internet, 28 VACCINE 1709, 1709 (2010) [hereinafter Kata, Pandora's Box]
242. Anna Kata, Anti-Vaccine Activists, Web 2.0, and the Postmodern Paradigm-An Overview of Tactics and Tropes Used Online by the Anti-Vaccination Movement, 30 VACCINE 3778, 3778 (2012) [hereinafter Kata, Anti-vaccine Activists]
243. Gregory A. Poland & Robert M. Jacobson, Understanding Those Who Do Not Understand: A Brief Review of the Anti-Vaccine Movement, 19 VACCINE 2440, 2440 (2001)
244. Robert M. Wolfe & Lisa K. Sharp, Vaccination or Immunization? The Impact of Search Terms on the Internet, 10 J. HEALTH COMM. 537, 538 (2005)
245. Robert M. Wolfe et al., Content and Design Attributes of Antivaccination Web Sites, 287 JAMA 3245, 3245 (2002)
246. Richard K. Zimmerman, et al., Vaccine Criticism on the World Wide Web, 7 J. MED. INTERNET RES. e17 (2005).
247. See, e.g., JAMES COLGROVE, STATE OF IMMUNITY: THE POLITICS OF VACCINATION IN TWENTIETH-CENTURY AMERICA 51-64 (2006)
248. PAUL A. OFFIT, DEADLY CHOICES: HOW THE ANTI-VACCINE MOVEMENT THREATENS US ALL 8-15 (2010).
249. See, e.g., Sherri Tenpenny, What Opened my Eyes to the Problems Vaccine Cause?, DR. TENPENNY, http://drtenpenny.com/why-i-investigated-vaccines/# (last visited Apr. 15, 2015).
250. see also Seth Mnookin, Mark Geier, Witness for Hire, in THE PANIC VIRUS: A TRUE STORY OF MEDICINE, SCIENCE, AND FEAR 170, 170-77 (2011).
251. Dr. Geier has recently had his license revoked in all states in which he practiced. See Todd W., Mark Geier: Not a Leg to Stand On, HARPOCRATES SPEAKS (May 23, 2013, 12:00 AM), http://www.harpocratesspeaks.com/2013/05/mark-geier-not-leg-to-stand-on.html.
252. For a critique of the most famous of these approaches, Dr. Boh Sears' alternative schedule, see Paul A. Offit & Charlotte A. Moser, The Problem With Dr. Bob's Alternative Vaccine Schedule, 123 PEDIATRICS e164, e164 (2009).
253. Katrina F. Brown et al., Factors Underlying Parental Decisions About Combination Childhood Vaccinations Including MMR A Systematic Review, 28 VACCINE 4235, 4236 (2010).
254. see also Comparison of Effects of Diseases and Vaccines, PUB. HEALTH AGENCY CAN., http://www.phac-aspc.gc.ca/publicat/cig-gci/cedv-cemv-tab-eng.php (last updated July 17, 2012)
255. Facts for Parents: Diseases & the Vaccines that Prevent Them, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/vaccines/vpd-vac/fact-sheet-parents.html (last updated Oct. 31, 2014)
256. Safety of Immunization, AUSTL. GOV'T DEP'T HEALTH & AGING, http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/immune-safety.htm (last updated Nov. 28, 2013).
257. Anti-vaccine activists often claim that adverse events are underreported. See The Under Reporting of Vaccine Side Effects: Vaccine Safety, VACCINE SIDE EFFECTS, http://www.vaccine-side-effects.com/under-reporting-side-effects, (last visited Apr. 16, 2015)
258. Vaccination: An Informed Choice, LIFEFORCE WELLNESS CTR., http://andreabrisson.com/articles/vaccinations.html (last visited Apr. 16, 2015).
259. See generally David A Kessler et al., Introducing MEDWatch: A New Approach to Reporting Medication and Device Adverse Effects and Product Problems, 269 JAMA 2765 (1993) (addressing drug side effects).
260. For a discussion of underreporting by the FDA see United States Parent Consumer Activist Group Cites Institute of Medicine (IOM) Report on Vaccine Risks, WHALE, http://www.whale.to/vaccine/nvic4.html (last visited Apr. 16, 2015).
261. There is some support to the claim if our measure of adverse events is the Vaccine Adverse Events Reporting System, VAERS, alone. The program website itself mentions underreporting as an issue, with varying degrees of underreporting by adverse event; but there is also overreporting, including interpreting a reaction as more severe than it actually was or reporting of wrong diagnosis. Since it is hard to assess how often these two phenomena happen generally, the program site explains that drawing conclusions from VAERS data alone about trends and numbers is problematic; instead, other sources are also used. See M. Miles Braun, Vaccine Adverse Event Reporting System ("VAERS"): Usefulness and Limitations, INST. FOR VACCINE SAFETY, http://www.vaccinesafety.edu/VAERS.htm (last updated Feb. 12, 2014)
262. (citing generally Steven Rosenthal & Robert Chen, The Reporting Sensitivities of Two Passive Surveillance Systems for Vaccine Adverse Events, 85 AM. J. PUB. HEALTH 1706 (1995)).
263. This assumption is the so-called post hoc ergo proper hoc fallacy (that is, "after therefore before"), and refers to an assumption that anything following a vaccine is caused by it. Wolfe et al., supra note 209, at 3247-48. It is a very powerful cognitive bias. See generally John Woods & Douglas Walton, Post Hoc, Ergo Propter Hoc, 30 REV. METAPHYSICS 569 (1977).
264. Athene Burdge, Posting to Parents Voice: Children's Adverse Outcomes Following Vaccination, FOLLOWING VACCINATIONS, http://www.followingvaccinations.com (last visited Apr. 17, 2015).
265. Our Son Had MMR Shot⋯ Then the Lights Went Out, VACCINATION NEWS, http://www.vaccinationnews.com/DailyNews/February2002/SonMMrLIghtsOut.htm (last visited Apr. 17, 2015).
266. H. Honda, et al., No Effect of MMR Withdrawal on the Incidence of Autism: A Total Population Study, 46 J. CHILD PSYCHOL. & PSYCHIATRY 572 (2005).
267. See Vaccines And Sudden Infant Death Syndrome, VACCINE AWARENESS NETWORK, http://www.vaccineriskawareness.com/Vaccines-And-Sudden-Infant-Death-Syndrome (last visited Apr. 17, 2015)
268. Mattresses, Sheepskins And SIDS: What Parents Need To Know, MOMMYPOTAMUS, http://www.mommypotamus.com/do-sheepskins-cause-sids (last visited Apr. 17, 2015)
269. Heidi Stevenson, Proof that Big Pharma Doesn't Care About Vaccine Harm, GAIA HEALTH, http://gaia-health.com/conventional-medicine/pharmaceuticals/proof-big-pharma-doesnt-care-vaccine-harm (last visited Apr. 17, 2015).
270. See M.M.T. Vennemann et al., Sudden Infant Death Syndrome: No Increased Risk After Immunisation, 25 VACCINE 336, 339 (2007).
271. It should also he noted that, while the number of available vaccines has increased since the 1940s, infant mortality has decreased. Jiaquan Xu et al., Deaths: Final Data for 2007, 58 NAT'L VITAL STAT. REP., no. 19, May 20, 2010, at 13 fig.7, available at http://www.cdc.gov/nchs/data/nvsr/nvsr58/nvsr58-19.pdf.
272. See Nina Oyen et al., Combined Effects of Sleeping Position and Prenatal Risk Factors in Sudden Infant Death Syndrome: The Nordic Epidemiological SIDS Study, 100 PEDIATRICS 613, 613 (1997)
273. Sudden Infant Death Syndrome (SIDS) and Vaccines, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/vaccinesafety/Concerns/sids-faq.html (last modified Jan. 15).
274. See Todd L. Savitt, The Social and Medical History of Crib Death, 66 J. FLA. MED. ASS'N 853, 854 (1979) ("The quantitative data is also convincing⋯ Dr. Arnold Paltauf of Vienna presented tables, in an 1889 article on sudden unexplained infant deaths, showing that 59% of these children died between the ages of two and four months. A Surgeon of Police in Dundee, Scotland, reported in 1892 that of 258 instances of'overlaying" investigated between 1882 and 1891, 60% (154) were children two to four months old, and 62% (159) occurred between October and March, the cold months of the year. Two years later, the editors of the British Medical Journal complained about the high number of overlaying deaths during the winter.").
275. See generally Julia M.L. Brotherton et al., Probability of Coincident Vaccination in the 24 or 48 Hours Preceding Sudden Infant Death Syndrome Death in Australia, 115 PEDIATRICS e643 (2005).
276. See generally MARKUS HEINZE, VACCEPTABLE INJURIES: INCREASING CHILDHOOD DISEASES & DEVELOPMENTAL DISORDERS (2012).
277. See Ctrs. for Disease Control, A Comprehensive Immunization Strategy to Eliminate Transmission of Hepatitis B Virus Infection in the United States: Recommendations of the Advisory Committee on Immunization Practices (ACIP) Part II: Immunization of Adults, 55 MORBIDITY & MORTALITY WKLY. REP., Dec. 8, 2006, at 12 ("In rare instances, chronic illnesses have been reported after hepatitis B vaccination, including chronic fatigue syndrome (192), neurologic disorders (e.g., leukoencephalitis, optic neuritis, and transverse myelitis) (193-195), rheumatoid arthritis (196, 197), type 1 diabetes (198), and autoimmune disease (199). However, no evidence of a causal association between these conditions or other chronic illnesses and hepatitis B vaccine has been demonstrated (183, 190, 200-203).").
278. See generally Cesare Belloni et al., No Evidence of Autoimmunity in 6-Year-Old Children Immunized at Birth With Recombinant Hepatitis B Vaccine, 110 PEDIATRICS e4 (2002)
279. Paul A. Offit & Charles J. Hackett, Addressing Parents' Concerns: Do Vaccines Cause Allergic or Autoimmune Diseases?, 111 PEDIATRICS 653 (2003)
280. Thierry Vial & Jacque Descotes, Autoimmune Diseases and Vaccinations, 14 EUR. J. DERMATOLOGY 86 (2004).
281. Whale.to, RATIONALWIKI, http://rationalwiki.org/wikiAVhale.to (last updated Apr. 11,2015).
282. Vaccine Disease, WHALE.TO, http://www.whale.to/vaccines/diseases.html (last visited Apr. 17, 2015).
283. See generally Paul A. Offit & Rita K. Jew, Addressing Parents' Concerns: Do Vaccines Contain Harmful Preservatives, Adjuvants, Additives, or Residuals?, 112 PEDIATRICS 1394 (2003).
284. In the Name of 'Protection, 'THINKINGMOMS' REVOLUTION (May 20, 2013), http://thinkingmomsrevolution.com/in-the-name-of-protection
285. Vaccines⋯ Are They Safe, LEADING EDGE HEALTH (Oct. 27, 2012), http://leadingedgehealth.org/2012/10/27/206
286. VIC (Vaccine Information Coalition), VACCINE INFO. COALITION, http://vacinfo.org/ingredients.htm (last visited Apr. 17, 2015).
287. For studies that address aluminum, see generally L.S. Keith et al., Aluminum Toxicokinetics Regarding Infant Diet and Vaccinations, 20 VACCINE S13 (2002)
288. Robert J. Mitkus et al., Updated Aluminum Pharmacokinetics Following Infant Exposures Through Diet and Vaccination, 29 VACCINE 9538 (2011).
289. See generally Paul A. Offit et al., Addressing Parents' Concerns: Do Multiple Vaccines Overwhelm or Weaken the Infant's Immune System?, 109 PEDIATRICS 124 (2002) [hereinafter Offit et al., Addressing Parents' Concerns].
290. "[A]n antigen is the substance that binds specifically to the respective antibody⋯. Each antibody from the diverse repertoire binds a specific antigenic structure by means of its variable region interaction (CDR loops), [in] analogy [to] the fit between a lock and a key." Antigen, WORLD HERITAGE ENCYCLOPEDIA, http://www.worldheritage.org/articleAVHEBN0000001915/Antigen (last visited Apr. 17, 2015).
291. See HERBERT J. GANS, DEMOCRACY AND THE NEWS 16-17 (2003)
292. EVERETT CARIA LADD & KARLYN H. BOWMAN, WHAT'S WRONG: A SURVEY OF AMERICAN SATISFACTION AND COMPLAINT 82-87, 97-104 (1998).
293. DES is a drug prescribed during pregnancy which caused serious injuries in a proportion of the fetuses whose mothers took it. See Sze Julie, Boundaries and Border Wars: DES, Technology, and Environmental Justice, 58 AM. Q. 791 (2006).
294. For a discussion of the DES story, see Julie Sze, Boundaries and Border Wars: DES, Technology, and Environmental Justice, 58 AM. Q. 791-93 (2006).
295. For a discussion of the Vioxx scandal, see TOM NESI, POISON PILLS: THE UNTOLD STORY OF THE VIOXX DRUG SCANDAL 156-59 (2008).
296. See BEN GOLDACRE, BAD SCIENCE: QUACKS, HACKS, AND BIG PHARMA FLACKS 126-27 (2010).
297. See, e.g., About the Program, AUSTL. GOV'T DEP'T HEALTH, http://www.immunise.health.gov.av/internet/immunise/publishing.nsf/Content/about-the-program (last visited Apr. 11, 2015) ("Immunisation is a simple, safe and effective way of protecting people against harmful diseases before they come into contact with them in the community. Immunisation not only protects individuals, but also others in the community, by reducing the spread of disease.").
298. See, e.g., Immunizing Your Child, TSAWOUT FIRST NATION (Sept. 7, 2011), http://tsawout.com/past-news-items/684-immunizing-your-child ("One of the most important things you can do as a parent is to make sure your child is immunized against 13 serious vaccine-preventable diseases. Vaccines have saved the lives of more babies and children than any other medical intervention in the past 50 years.").
299. See How Vaccination Saves Lives, NHS CHOICES, http://www.nhs.uk/Conditions/vaccinations/Pages/vaccination-saves-lives.aspx (last visited Apr. 11, 2015) ("Due to vaccinations, we no longer see smallpox, and polio has almost been eradicated. No wonder vaccination is considered a modern miracle. Vaccination is one of the greatest breakthroughs in modern medicine. No other medical intervention has done more to save lives and improve quality of life.").
300. Immunization, WORLD HEALTH ORG., http://www.who.int/topics/immunization/en (last visited Apr. 11, 2015).
301. Geoffrey Evans et al., Legal Issues, in VACCINES 1483, (Stanley A. Plotkin et al. eds., 2013).
302. See State of Health of Unvaccinated Children, VACCINE INJURY, http://www.vaccineinjury.info/results-unvaccinated/results-general.html (last visited June 16, 2015).
303. See Roma Schmitz et al., Vaccination Status and Health in Children and Adolescents: Findings of the German Health Interview and Examination Survey for Children and Adolescents (KiGGS), 108 DEUTSCHES ARZTEBLATE INT'L 99, 99 (2011).
304. See, e.g., PAUL A. OFFIT, DO YOU BELIEVE IN MAGIC? THE SENSE AND NONSENSE OF ALTERNATIVE MEDICINE 215-17, 243 (2013) [hereinafter OFFIT, DO YOU BELIEVE IN MAGIC?].
305. "Dr. Offit is a professor of pediatrics in the Division of Infectious Diseases at The Children's Hospital of Philadelphia and the Maurice R. Hilleman Professor of Vaccinology and Professor of Vaccinology at the Perelman School of Medicine at the University of Pennsylvania." Vaccine Education Center, THE CHILDREN'S HOSP. PHILA., http://www.chop.edu/service/vaccine-education-center/about-the-vaccine-education-center.html (last visited Apr. 11, 2015).
306. He published widely on vaccines-both academic articles and articles aimed to educate parents-and wrote several books on the topic. Id. He is a co-inventor of a vaccine to prevent rotavirus, a disease that hospitalized tens of thousands of children in the United States and harmed and killed several, see Rotavirus, in EPIDEMIOLOGY AND PREVENTION OF VACCINE-PREVENTABLE DISEASES: THE PINK BOOK 263 (William Atkinson et al. eds., 12th ed. 2012), available at http://www.cdc.gov/vaccines/pubs/pinkbook/downloads/rota.pdf
307. killed, until recently, nearly half a million children a year world-wide. Immunization, Vaccines and Biologicals: Rotavirus, WORLD HEALTH ORG., http://www.who.int/nuvi/rotavirus/en (last visited Apr. 11, 2015).
308. For speaking up in favor of vaccination, he is reviled and threatened by anti-vaccination activists. See Claudia Kalb, Dr. Paul Offit: Debunking the Vaccine-Autism Link, NEWSWEEK (Oct. 24, 2008), http://www.newsweek.com/dr-paul-offit-debunking-vaccine-autism-link-91933
309. Donald G. McNeil, Book Is Rallying Resistance to the Anti-vaccine Crusade, N.Y. TIMES (Jan. 12, 2009), http://www.nytimes.com/2009/01/13/health/13auti.html?-r=0.
310. Barbara Loe Fisher, Vaccine Freedom of Choice: Presented at the Rally for Conscientious Exemption to Vaccination, NAT'L VACCINE INFO. CTR. (Oct. 16, 2008), http://www.nvic.org/informed-consent/freedomofchoice.aspx.
311. John A. Kitzhaber, New Process for Claiming Non-Medical Exemptions to School Immunization Requirements Begins March 1, 2014, OR. HEALTH AUTH. (July 1, 2013), http://public.health.oregon.gov/PreventionWellness/VaccinesImmunization/Gettinglmmunized/Documents/SchNon-medExmptMemo.pdf.
312. See, e.g., Norma Erickson, Vaccines: Why are Informed Consent Laws Being Ignored?, HEALTH IMPACT NEWS (July 8, 2013), http://healthimpactnews.com/2013/vaccines-why-are-informed-consent-laws-being-ignored.
313. 42 U.S.C. § 300aa-26 (2012). For an explanation why this fulfills the requirements of informed consent, see Dorit Reiss, Informed Consent, MOMS WHO VAX (Jan. 20, 2014), http://momswhovax.blogspot.com/2014/01/informed-consent-and-vaccines.html.
314. Dawn Richardson, State Legislative Updates: The Final Days and What You Can Do to Help, NAT'L VACCINE INFO. CTR. (May 23, 2013), http://www.nvic.org/nvic-vaccine-news/may-2013/state-legislative-updates-the-final-days.aspx.
315. Educate4theInjured.org, FACEBOOK (June 30, 2013), https://www.facebook.com/Educate4theInjured/posts/528749553844966.
316. TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 99-148 (6th ed. 2009)
317. GERALD DWORKIN, THE THEORY AND PRACTICE OF AUTONOMY (1988)
318. BARRY R. FURROW ET AL., HEALTH LAW: CASES MATERIALS, AND PROBLEMS 1555-76 (7th ed. 2013) (discussing autonomy interests in health care decisionmaking by competent adults)
319. WILLARD GAYLIN & BRUCE JENNINGS, THE PERVERSION OF AUTONOMY: COERCION AND CONSTRAINTS IN A LIBERAL SOCIETY (2003)
320. Bruce Jennings, Autonomy, in THE OXFORD HANDBOOK OF BIOETHICS 72 (Bonnie Steinbock, ed., 2007).
321. Eita Barnett-Rose, Informed Consent, Psychotropic Medications, and a Prescribing Physician's Duty to Disclose Safer Alternative Treatments, 16 DEPAUL J. HEALTH CARE L. 67, 71-77 (2014)
322. Jaime Staples King & Benjamin Moulton, Rethinking Informed Consent: The Case for Shared Medical Decision-Making, 32 AM. J.L. &MED. 429 (2006).
323. Because the focus of vaccine laws are population-based, and the benefits to individuals rely substantially on achieving population-wide success, Wendy Parmet suggests modifying the requirements of informed consent disclosure in the context of public health interventions such as vaccines to include information about the social benefits and social consequences of vaccination decisions together with the standard discussions of risks and benefits to individuals. See WENDY L. PARMET, POPULATIONS, PUBLIC HEALTH, AND THE LAW 201-02 (2009).
324. See, e.g., WILLIAM R. HUTCHISON, RELIGIOUS PLURALISM IN AMERICA: THE CONTENTIOUS HISTORY OF A FOUNDING IDEAL 1 (2003)
325. Darryn Cathryn Beckstorm, Balancing Civic Values and Parents' Free Exercise Rights, 45 GONZ. L. REV. 149, 162 (2010) ("American society was created on a notion of pluralism, and when parents are able to raise their children with values specific to their religious tradition, society is able to recognize the benefits of pluralism through this accommodationist approach.")
326. Rebecca L. Brown, Common Good and Common Ground: The Inevitability of Fundamental Disagreement, 81 U. CHI. L. REV. 397 (2014).
327. Of course, we must ask the question of whose religious beliefs one must respect or tolerate when minors' welfare is involved. Typically, free exercise cases involving children focus on protection of parental religious preferences. Whether children share those beliefs or would seek those exemptions if legally capable of exercising religious freedom is often ignored by the courts. See, e.g., Jennifer E. Chen, Family Conflicts: The Role of Religion in Refusing Medical Treatment for Minors, 58 HASTINGS L.J. 643 (2007)
328. James G. Dwyer, Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights, 82 CAL. L. REV. 1371 (1994)
329. see also Wisconsin v. Yoder, 406 U.S. 205, 241 (1972) (Douglas, J., dissenting) (arguing that the adolescent children in Yoder have independent interests from their parents which should have been recognized by the Court in its analysis)
330. Emily Buss, What Does Frieda Yoder Believe?, 2 U. PA. J. CONST. L. 53 (1999) (agreeing with Justice Douglas regarding the premise that children's free exercise rights should at times be considered by courts independent from that of their parents, but disagreeing as to mechanisms for ascertaining the nature of those interests). In addition to the values cited in text above, the bioethical principle of justice requires fairness and equity in the facial requirements and implementation of policies, with corollary obligations not to discriminate among similarly-situated population subgroups grounded on statutory and constitutional law. See, e.g., BEAUCHAMP & CHILDRESS, supra note 287, at 249-301.
331. See Lawrence O. Gostin, Scott Burris & Zita Lazzarini, The Law and the Public's Health: A Study of Infectious Disease Law in the United States, 99 COLUM. L. REV. 59, 120 (1999).
332. James F. Childress et al., Public Health Ethics: Mapping the Terrain, 30 J.L. MED. & ETHICS 170, 173 (2002).
333. Public Health: Ethical Issues, NUFFIELD COUNCIL ON BIOETHICS (2007), available at http://nuffieldbioethics.org/wp-content/uploads/2014/07/Public-health-ethical-issues.pdf [hereinafter NUFFIELD COUNCIL].
334. See, e.g., Wendy E. Parmet, Beyond Paternalism: Rethinking the Limits of Public Health Law, 46 CONN. L. REV. 1771, 1784-86 (2014) (briefly contrasting several perspectives on coercion and legal policies)
335. Alan Wertheimer & Franklin G. Miller, Payment for Research Participation: A Coercive Offer? 34 J. MED. ETHICS 398 (2008) (discussing concepts of coercion in the context of research participation). Concepts of coerciveness in lawmaking abound in a range of areas, such as those involving the constitutionality of Congress' exercise of its Spending Power
336. See, e.g., Mitchell N. Berman, Cocercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions, 91 TEX. L. EEV. 1283, 1289 (2013) (highlighting the lack of consistency in the U.S. Supreme Court's use of terminology such as coercion and compulsion: "in loose fashion, sometimes treating them as synonyms, sometimes not, and never carefully defining either")
337. Andrew B. Coan, Commandeering, Coercion, and the Deep Structure of American Federalism, 95 B.U. L. REV. 1 (2015)
338. Kathleen Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989).
339. In Establishment Clause jurisprudence, see, for example, Rex Ahdar, Regulating Religious Coercion, 8 STAN. J. CR. & CL. 215 (2012)
340. regarding contracting and negotiation strategies, see, for example, Paul F. Kirgis, Bargaining with Consequences: Leverage and Coercion in Negotiation, 19 HARV. NEGOT. L. REV. 69 (2014).
341. In contrast to their placement on our continuum, one could argue that positive incentives are actually more coercive than are procedural changes that impose additional burdens on parents who seek exemptions. Incentives attempt to influence behavior directly, while the role of tightened procedures in this context is promotion of accuracy, with deterrent effects as byproducts. While acknowledging this viewpoint, we characterize procedural changes that create additional burdens as more coercive. In so doing, we are influenced by an extensive administrative law literature that highlights the role of procedural mechanisms and institutional design in controlling and managing behavior. See, e.g., M.D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987)
342. William F. West, Formal Procedures, Informal Processes, Accountability, and Responsiveness in Bureaucratic Policy Making: An Institutional Policy Analysis, 64 PUB. ADMIN. REV. 66, 67-68 (2004). Especially in this context, we recognize the potentially-powerful behavior-altering goals of procedural mechanisms.
343. See, e.g., Arthur L. Caplan et al., Free to Choose but Liable for the Consequences: Should Non-Vaccinators be Penalized for the Harm They Do?, 40 J.L. MED. & ETHICS 606, 608-10 (2012)
344. Dorit Rubinstein Reiss, Compensating the Victims of Failure to Vaccinate: What are the Options?, 23 CORNELL J.L. & PUB. POL'Y 595, 605 (2014).
345. See Emily Largent et al., Money, Coercion, and Undue Inducement-Attitudes about Payments to Research Participants, 34 IRB: ETHICS & HUM. RES. 1, 1-8 (2012). See generally Wertheimer & Miller, supra note 303.
346. See, e.g., Alina Sadaf et al., A Systematic Review of Interventions for Reducing Parental Vaccine Refusal and Vaccine Hesitancy, 31 VACCINES 4293, 4295 (2013)
347. Y. Tony Yang & Ross D. Silverman, Legislative Prescriptions for Controlling Nonmedical Vaccine Exemptions, 313 JAMA 247 (2015).
348. For example, persuasive messages conveyed by religious leaders to the adherents of a particular religion may be unusually persuasive to the recipients. For others, communications and recommendations provided by physicians may have added persuasive power. In both contexts, depending upon what other factors are associated with the person engaging in persuasion, recipients may comply or internalize the communicated logic because of deference to the source's knowledge, expertise, authority, or power. See, e.g., Edmund D. Pellegrino, Patient and Physician Autonomy: Conflicting Rights and Obligations in the Physician-Patient Relationship, 10 J. CONTEMP. HEALTH L. & POL'Y 47, 55-58 (1993) (discussing patients' vulnerability in relationship to physicians and physicians' capacity to manipulate patients' decisions in the informed consent process).
349. See generally PAUL A. OFFIT, BAD FAITH: WHEN RELIGIOUS BELIEF UNDERMINES MODERN MEDICINE (2015).
350. See generally Cude v. State, 377 S.W.2d 816 (Ark. 1964).
351. See In re CR., 570 S.E.2d 609,609 (Ga. Ct. App. 2002); In re Stratton, 571 S.E.2d 234 (N.C. Ct. App. 2002). See generally Dep't of Human Servs. v. S.M., 323 P.3d 947 (Or. 2014).
352. The one exception is Diana H. v. Rubin, 171 P.3d 200 (Ariz. Ct. App. 2007), where a court of appeals, in a two-to-one decision over a strong dissent, allowed a child to remain unvaccinated, finding no imminent risk to the child.
353. Welker v. Welker, 129 N.W.2d 134,138 (Wis. 1964).
354. But see Grzyb v. Grzyb, 79 Va. Cir. 93 (Va. Cir. Ct. 2009). This type of order is, however, qualitatively different than those affecting children in state custody. In the context of a private custody dispute between two parents, the court's role is that of private dispute settlement rather than child protection through overriding parental authority. In the parental custody-dispute context, the court is typically allocating the decisionmaking authority for the child's welfare between parents, rather than replacing parental childrearing autonomy with state authority.
355. See, e.g., Anderson v. State, 65 S.E.2d 848, 852 (Ga. Ct. App. 1951)
356. State v. Drew, 192 A. 629, 632 (N.H. 1937).
357. Both were recently used towards non-vaccinating parents, though the legal proceedings have not been concluded: [A] provision in the Code of Public Health (le code de la santé publique, art. L.3116-4)⋯ imposes a fine [sic] of 3750 euros and up to six months in jail for those who do not receive, or allow those under their guardianship to receive, mandatory vaccinations, including parents ("Le refus de se soumettre ou de soumettre ceux sur lesquels on exerce l'autorité parentale ou dont on assure la tutelle aux obligations de vaccination prévues aux articles L. 3111-2, L. 3111-3 et L. 3112-1 ou la volonté d'en entraver l'exécution sont punis de six mois d'emprisonnement et de 3 750 Euros d'amende"). And a provision in the criminal code that criminalizes neglect of parental duties 'to the point of risking the health⋯ of a minor child', with a fine of 30,000 euros and up to two years in prisons as penalty (article 227-17: "Le fait, par le père ou la mère, de se soustraire, sans motif légitime, à ses obligations légales au point de compromettre la santé, la sécurité, la moralité ou l'éducation de son enfant mineur est puni de deux ans d'emprisonnement et de 30,000 euros d'amende"). Dorit Eubinstein Reiss, Freedom to Ignore French Vaccination Program - A Court Case, SKEPTICAL RAPTOR, http://www.skepticalraptor.com/skepticalraptorblog.php/freedom-vaccinate-france-a-court-case (last updated Mar. 28, 2015).
358. See Edward A. Fallone, Preserving the Public Health: A Proposal to Quarantine Recalcitrant AIDS Carriers, 68 B.U. L. REV. 441, 461 (1988) (discussing the notion of a "modified quarantine which selectively restricts an individual from participation in certain activities, e.g.,⋯ school attendance").
359. See generally Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015).
360. Veronica Rocha, O.C. Students May Have Been Exposed to Measles, Kept Out of School, L.A. TIMES (Jan. 20, 2015, 6:35 AM), http://www.latimes.com/local/lanow/la-me-ln-students-exposed-to-measles-oc-20150120-story.html.
361. For citation to the language of the final legislative language, see supra note 185. For a discussion of the lobbying efforts that accompanied legislative consideration, see, for example, Lauren Rosenhall, California Parents Lobby Lawmakers from Both Sides of Vaccine Debate, SACRAMENTO BEE (Feb. 25, 2015), http://www.sacbee.com/news/politics-government/capitol-alert/article11174378.html.
362. See Bill Number: 212 Introduced, H. COMM. ON HEALTH CARE (Vt. 2015), http:/legislature.vermont.gov/bill/status/2016/H.212.
363. The enacted bill, H.98 (Act 37), 2015-2016 Gen. Assemb. (Vt. 2015), amends VT. STAT. ANN. tit. 18 § 1122 (a)(3)(A) and is effective July 1,2016. For a discussion of these legislative developments, see, for example, Jerry A. Coyne, Banning Philosophical Exemptions While Keeping Religious Ones Makes No Sense, NEW REPUBLIC (June 1, 2015), http://www.newrepublic.com/article/121940/vermont-ends-philosophical-not-religious-exemptions-vaccination
364. Michael Spector, Vermont Says No to the Anti-Vaccine Movement, NEW YORKER (May 29, 2015), http://www.newyorker.com/news/news-desk/vermont-says-no-to-the-anti-vaccine-movement.
365. For a summary of recent legislation proposed in the states, see NAT'L CONF. ST. LEGISLATORS, supra note 139; see also Gabrielle Canon, 2s Your State Trying to Outlaw Vaccine Exemptions?, MOTHER JONES (Mar. 2. 2015), http://www.motherjones.com/politics/2015/02/vaccine-map-exemption-bills.
366. As mentioned in Part IV, several hospitals have adopted requirements that health care workers in their employ be vaccinated, and some hospitals have dismissed workers who would not vaccinate. See Lisa H. Randall et al., Legal Considerations Surrounding Mandatory Influenza Vaccination for Healthcare Workers in the United States, 31 VACCINE 1771, 1772 (2013)
367. Rene F. Najera & Dorit R. Reiss, First Do No Harm: Protecting Patients through Immunizing Health care Workers, 26 HEALTH MATRIX (forthcoming 2016). The legal status of such employer policies and actions is not yet fully determined, as the issue is relatively new and the jurisprudence in the early stages of development. These policies could also be applied in the context of school employees to better protect children by making sure the staff is immunized.
368. Amanda Z. Naprawa, Polio Doesn't Need a Passport- and Maybe Neither Do You, VACCINE ADVOCATE (May 21, 2014, 2:56 PM), http://thevaccineadvocate.com/QWQPZ/2014/05/21/polio-doesnt-need-a-passport-and-maybe-neither-do-you.
369. But see Zemel v. Rusk, 381 U.S. 1, 12-18 (1965) (casting doubt on whether sweeping restrictions, at least, would be constitutional).
370. Dorit R. Reiss, Compensating the Victims of Failure to Vaccinate: What are the Options?, 23 CORNELL J.L. & PUB. POL'Y 595 (2014).
371. Christine Vara, The Rights of the Unvaccinated Child: Tort Liability, SHOT OF PREVENTION (Feb. 18, 2014), http://shotofprevention.com/2014/02/18/the-rights-of-the-unvaccinated-child-tort-liability.
372. Amanda Z. Naprawa & Dorit R. Reiss, Medical Advice and Vaccinating: What Liability?, 26 U. FLA. J.L. & PUB. POL'Y (forthcoming Dec. 2015).
373. Charlotte A. Moser, et al, Funding the Costs of Disease Outbreaks Caused by Non Vaccination, J.L. MED. & ETHICS (forthcoming Fall 2015).
374. See generally ARCHON FUNG ET AL., FULL DISCLOSURE: THE PERILS AND PROMISE OF TRANSPARENCY (2007).
375. Child Care/School Lookup: How Well-Vaccinated is Your Child's Child Care Facility /School, SHOTS FOR SCHOOL, http://www.shotsforschool.org/lookup (last visited Apr. 12, 2015).
376. Resource Library, COLO. CHILDREN'S IMMUNIZATION COAL., http://www.childrensimmunization.org/PBE (last visited June 16, 2015).
377. see also Walter A. Orenstein & Alan R. Hinman, The Immunization System in the United States - The Role of School Immunization Laws, 17 VACCINE S19 (1999).
378. See Ross D. Silverman, No More Kidding Around: Restructuring Non-Medical Childhood Immunization Exemptions to Ensure Public Health Protection, 12 ANNALS HEALTH L. 277, 285 (2003).
379. About VFC, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/vaccines/programs/vfc/about/index.html (last visited Apr. 12, 2015).
380. See generally Immunising Your Children, AUSTL. GOV'T DEP'T HUMAN SERVS., http://www.humanservices.gov.au/customer/subjects/immunising-your-children#a4 (last visited Apr. 12, 2015).
381. Vaccine Education Center, CHILDREN'S HOSP. PHILA., http://vec.chop.edu/service/vaccine-education-center/home.html (last visited Apr. 12, 2015).
382. Immunization, AM. ACAD. PEDIATRICS, http://www2.aap.org/immunization (last visited Apr. 12, 2015).
383. Handouts for Patients & Staff, IMMUNIZATION ACTION COAL., http://www.immunize.org/handouts (last visited Apr. 12, 2015).
384. Voices for Vaccines: Parents Speaking Up for Immunization, VOICES FOR VACCINES, http://www.voicesforvaccines.org/tools (last visited Apr. 12, 2015).