NCSL State Legislative Report
Analysis of State Actions on Important Issues
School Vaccination Requirements: Legal and Social Perspectives
By James G. Hodge Jr.
August 2002
Volume 27, Number 14
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 State Legislative Reports Table of Contents
Vaccination has a rich and controversial history in America and abroad. Since the late 18th century when Dr. Edward Jenner developed a vaccine for smallpox in England, vaccination has been an important component of public health practice. Vaccination programs are among the most cost-effective and widely used public health interventions. Vaccines have helped to control or even eliminate epidemic diseases, including smallpox, measles, mumps, rubella, diphtheria and polio. The Centers for Disease Control and Prevention (CDC) lists vaccination practices among the top 10 public health achievements of the 20th century. 1
As a core component of vaccination policy in the United States, each state has enacted school vaccination laws that require children to be vaccinated for several communicable diseases. Subject to exceptions, including individual medical, religious and philosophical exemptions, state school vaccination laws mandate that children be vaccinated before attending public or private schools. Failure to vaccinate can result in a child's exclusion from school, civil fines and criminal penalties against parents or guardians, and other measures (e.g., the closure of a school).
This report examines state legal requirements and challenges underlying school vaccination laws. What are the current statutory requirements for school vaccinations? How have courts construed these laws on various legal and +onstitutional grounds? Are these requirements effective from a public health perspective? Available scientific data indicate that school requirements have increased vaccination rates and reduced the incidence of childhood disease. Still, arguments about the efficacy and safety of vaccines have contributed to public concerns.
Early School Vaccination Laws
State laws mandating public vaccination originated in the early 19th century. 2 In 1905, when the United States Supreme Court decision, Jacobson vs. United States, affirmed the power of the state to compel vaccination, many states had already required citizens to submit to vaccination for smallpox and other diseases. 3 Early school vaccination policies were coupled with compulsory education laws. Local counties, cities (e.g., Boston, 1827), and boards of education attempted to impose childhood vaccination as a condition of school attendance. 4 Massachusetts incorporated a statewide school vaccination law in 1855, New York in 1862, Indiana in 1881, and Illinois and Wisconsin in 1882. Other states followed despite strong opposition and complications in enforcement due to active resistance, public apathy and judicial activism.
Historical Objections to School Vaccination Requirements
Although state school vaccination requirements are widely accepted as serving important public health purposes, school vaccination programs have also provoked popular resistance. Historical and modern examples of the perceived and potential harms of vaccination and strongly held religious beliefs have led to fervent objections. Parents and others have challenged school vaccination laws on legal, social and epidemiological grounds, including:
- Objections about the effectiveness or need for mass vaccinations,
- Fears of harmful effects arising from the introduction of foreign substances into the human body, including that vaccination actually transmits, rather than prevents, disease or weakens the immune system,
- Legal and constitutional objections, including religious objections under the First Amendment, and theories of equal protection, due process and privacy violations.
Judicial Treatment of School Vaccination Laws
Most courts have upheld the authority of the state to protect the public's health through school vaccination requirements. Constitutional challenges to school vaccination laws on the grounds of equal protection, due process or privacy violations were routinely rejected. Courts did, however, help change vaccination policy. State courts in Illinois (1897), Wisconsin (1897), Utah (1900) and North Dakota (1919), for example, interpreted their respective state school vaccination laws to apply only when a disease (usually smallpox) was present in or threatening a community. 5 Though the Jacobson decision upheld city vaccination requirements, it exempted people whose medical condition might be compromised by the vaccine itself. In addition, many courts affirmed constitutional challenges to school vaccination laws as infringing individual religious beliefs under the First Amendment. This led to statutory amendments to exempt people with legitimate religious (and later, philosophical) objections from school vaccination requirements.
Modern State School Vaccination Laws
These early social and judicial responses to school vaccination laws laid the foundation for modern vaccination statutes. State legislatures have regularly amended school vaccination laws to 1) reflect changes in societal exemptions; 2) include additional diseases as new vaccines became available, and 3) extend requirements to private schools, institutes of higher education, licensed day care facilities and Head Start programs.
The CDC publishes a schedule of vaccinations 6 based on the recommendations of several advisory committees. 7 All states, as a condition of elementary school entry, now require proof of vaccination against diseases on the vaccination schedule (e.g., diphtheria, measles, rubella and polio) subject to approval at the state level by public health authorities or, in some states, formal advisory bodies. These statutes often require schools to maintain vaccination records and report information to public health authorities. Such laws are consistent with federally sponsored vaccination programs that require states to enforce school vaccination regulations to receive federal funds.
Although exemptions vary from state to state, all school vaccination laws grant exemptions to children for medical reasons. Virtually all states (except Mississippi and West Virginia) also grant religious exemptions for people who have sincere religious beliefs against vaccination. 8 Some statutes require parents to disclose their religion, while others are less restrictive. Eighteen states also grant exemptions for parents who profess philosophical convictions in opposition to vaccination. These statutes allow parents to object to vaccination because of their "personal," "moral," or "other" beliefs. In practice, exempted students constitute only a small percentage of total school entrants.
Table 1 summarizes modern school vaccination laws and requirements. (Please view the Adobe Acrobat version for Table 1)
Contemporary Issues
Substantial debate continues about how school requirements should be designed. Those in favor of school vaccination policies cite the significant public health and individual benefits of systematized, comprehensive childhood vaccination. Those against school vaccination policies assert the potential risks and dangers of vaccination, suggest that massive vaccination for some diseases is not needed, and oppose governmental policies that may differ with their political or religious beliefs. Organized groups of parents and consumer advocates actively lobby state legislatures for liberal exemptions 9 and seek judicial or administrative recourse for injuries to children allegedly arising from vaccination. Some argue that government should never impose vaccination without specific informed consent. 10
Public Health Benefits of School Vaccination Requirements
Since their inception, school vaccination requirements have received strong support because of their public health benefits, as well as the altruistic need to protect children from disease. From a public health perspective, state school vaccination laws, along with other public health interventions, have been successful. The rate of fully vaccinated school-age children in the United States (greater than 95 percent) is as high, or higher, than most other developed countries. The incidence of common childhood illnesses (such as measles, mumps, rubella, diphtheria, tetanus, pertussis and polio) has dramatically declined since the advent and use of vaccines. 11 Numerous public health studies conclude that comprehensive vaccination policies are greatly responsible for the significant reduction, and sometimes complete eradication, of these and other childhood diseases. 12
Public health officials and most lawmakers contend that school vaccination laws and policies have worked toward accomplishing public health goals. 13 Most vaccinations should occur within a child's first two years (well before the child attends compulsory education), and many parents choose (and physicians recommend) early vaccination to protect the child's health and to avoid the subsequent denial of school admission in states where laws are strictly enforced. School vaccination laws provide a health "safety net" for unvaccinated children who would otherwise be placed in a school environment where their risks of spreading and contracting disease are heightened.
Do school vaccination laws, however, correlate with lower rates of childhood diseases or improved vaccination coverage? Based upon a 1999 expert review of existing scientific studies, the National Immunization Program at the CDC and the Task Force on Community Preventive Services concluded that " ... sufficient scientific evidence exists that vaccination requirements for child care, school and college attendance are effective in improving vaccination coverage and immunity and ... in reducing rates of disease." 14 These and other findings support the correlation between school vaccination requirements, reduced disease incidence and improved vaccination coverage "regardless of varying race/ethnicity and socioeconomic status." 15
Still, other factors are important to consider. For example, parents may have their children vaccinated based on better public education or the recommendation of their pediatricians, instead of the law. Also, the effectiveness of school vaccination requirements is tempered in some states and locales where low vaccination levels of some school-age children and high rates of "exemptors" prevail. 16 Although the proportion of exemptors remains low (around 2 percent), even small numbers of unvaccinated students in school may compromise the population's immunity. Other factors contribute to sometimes unacceptably low rates of childhood vaccinations, including:
- Lack of resources, access to services or sufficient national monitoring,
- Increased costs of vaccines,
- The numbers of doses needed for a complete series with some vaccines,
- Complexities of the childhood vaccination schedule,
- Poor record keeping among some schools systems.
Several major outbreaks of measles from 1989 to 1991 among unvaccinated children (many of whom were pre-school-age) led Congress to enact the Comprehensive Childhood Immunization Act of 1993. The act entitled eligible children to free vaccines, supported state efforts to deliver vaccines, increased community participation and provider education, enhanced measurement of vaccination status, and promoted combination vaccines to simplify the vaccination schedule. 17
Modern Arguments Against School Vaccination Requirements
Many contemporary arguments against compulsory school vaccination resemble those of the past. People remain concerned about the safety of vaccines, the need for vaccines (especially for diseases that are rare or nonexistent), the rights of government to compel vaccination without informed consent, and conflicts with individual religious or philosophical beliefs. These concerns continue to receive legislative and judicial attention. 18
Arguments relating to the safety of vaccines have been legislatively addressed at the federal level. The federal Food and Drug Administration (FDA) requires manufacturers to rigorously test and monitor the safety of proposed vaccines before and after they are introduced to the general population. Congress addressed liability for potential injuries resulting from the use of vaccines through the National Childhood Vaccine Injury Act of 1986. 19 The act:
- Established the National Vaccine Program in the federal Department of Health and Human Services to regulate research, safety and efficacy testing, licensing, distribution and use of vaccines,
- Created the Vaccine Injury Compensation Program to compensate people who suffer from certain vaccine-induced injuries without resorting to litigation,
- Required health care providers and manufacturers to report certain adverse events from vaccines through the Vaccine Adverse Events Reporting System,
- Provided health care workers with standardized written information for distribution to parents before administering certain vaccines.
There are additional objections to school vaccination policies. Modern opponents who petition federal and state legislatures for legal reform of the vaccination system strenuously object to the addition of new vaccination requirements and seek administrative and judicial remedies for vaccination-induced injuries. In some instances, this has led to the circulation of popular vaccination misconceptions (e.g., that infants are too young to be immunized or that vaccines weaken the immune system). The CDC's National Immunization Program has identified (and refuted) common misconceptions about vaccination. 20 A few examples include:
- Diseases had already begun to disappear before vaccines were introduced because of better hygiene and sanitation,
- The majority of people who get diseases are those who have been vaccinated,
- Elimination of diseases in the United States means that vaccination is no longer needed.
Many individuals assess risks to their children very differently than public health officials gauge the public risks of vaccination. Even a very small risk of adverse reaction to a vaccine raises public concerns. Therefore, apprehension about school vaccination requirements as a primary public health strategy will persist. In many ways, these concerns have helped shape and improve vaccination science and policy.
Conclusion
State school vaccination laws and policies have developed over time as the debate over the value, need and legality of these requirements continues. School vaccination requirements have prevailed due to the proven impact of increased childhood vaccination rates, which correlate with lowered incidence of disease. Though some have argued unsuccessfully for the repudiation of broad school vaccination requirements, they have carved out political and constitutionally based medical, religious and philosophical exceptions to these requirements.
At its crux, the vaccination debate centers around community versus individual rights. Childhood vaccination efforts may be thwarted by increasingly larger pools of exemptors. While even a very small risk of adverse reactions to a vaccination cause public concern, school vaccination policies have served a valuable public health goal of reducing once epidemic childhood diseases. The benefits of a comprehensively vaccinated childhood population belong not only to the public's health, but to each individual.
James G. Hodge Jr., J.D., L.L.M., is with the Center for Law and the Public's Health at Georgetown University and Johns Hopkins University. For questions regarding this report, contact Jo Donlin of NCSL's Health Care Program at (303) 364-7700, or email jo.donlin@ncsl.org.
Acknowledgments
This State Legislative Report is based on an article by James G. Hodge Jr. and Lawrence O. Gostin already published in the Spring 2002 volume of the Kentucky Law Journal. The author is grateful for the assistance of distinguished public health officials, scholars and other experts in vaccination law, history, ethics and policy who provided comments and suggestions based on their review of the corresponding article. These individuals include: Bruce Gellin, M.D., Department of Preventive Medicine, Vanderbilt Medical Center; Neal A. Halsey, M.D., director, Institute for Vaccine Safety, Johns Hopkins School of Hygiene and Public Health; Alan R. Hinman, M.D., M.P.H., senior consultant for Public Health Programs, Task Force for Child Survival and Development; Walter Orenstein, M.D., director, National Immunization Program, Centers for Disease Control and Prevention; and Thomas M. Vernon, M.D., vice president, Policy, Public Health and Medical Affairs, MERCK Vaccine Division, MERCK and Co. Inc. Preparation of this report was sponsored in part by the Merck Company Foundation and the Centers for Disease Control and Prevention.
Notes
1. Centers for Disease Control and Prevention, "Impact of Vaccines Universally Recommended for Children-United States, 1900-1998," Journal of the American Medical Association 281, no. 16 (1999): 1482, 1483.
2. W. P. Prentice, Police Powers Arising Under the Law of Overruling Necessity, (Littleton, Colo.: Fred B. Rothman and Co., 1993): 132; Charles L. Jackson, "State Laws on Compulsory Immunization in the United States," Public Health Report 84, (1969): 787, 792-94.
3. See Jacobson vs. Massachusetts, 197 U.S. 11 (1905); Viemester vs. White, 179 N.Y. 235 (1904) (upholding N.Y. statute excluding from public schools all children who had not been vaccinated).
4. John Duffy, "School Vaccination: The Precursor to School Medical Inspection," Journal of the History of Medicine and Allied Sciences (July 1978): 344, 345.
5. See Lawbaugh vs. Board of Educ., 52 N.E. 850 (Ill. 1899); Potts vs. Breen, 47 N.E. 81 (Ill. 1897); Rhea vs. Board of Educ., 171 N.W. 103 (N.D. 1919); Cox vs. Board of Educ., 60 P. 1013 (Utah 1900); Adams vs. Burdge, 70 N.W. 347 (Wis. 1897).
6. Advisory Committee on Immunization Practices, "Combination Vaccines for Childhood Immunization," Morbidity and Mortality Weekly Report 48, no. RR05 (1999): 1-15. Current CDC recommendations are available at http:\\www.cdc.gov.
7. Advisory Committee on Immunization Practices, "General Recommendations on Immunization," Morbidity and Mortality Weekly Report 38 (1989): 205.
8. The language of religious exemptions vary from a strict standard ("recognized church or denomination whose teaching forbid vaccination," Ark. Code Ann. §6-18-702) to a more vague standard ("belief in relation to a Supreme being," Del. Code Ann. Tit. 14 §131). As of the 1999/2000 school year, only two states (West Virginia and Mississippi) lacked a religious exemption. W. Va. Code §16-3-4 (1999); Miss. Code. Ann. §41-23-37 (Supp. 1994) (the state Supreme Court held the religious exemption was unconstitutional in Brown vs. Stone, 378 So.2d 218 (Miss. 1979), cert. denied, 449 U.S. 887 (1980)).
9. Kristine M. Severyn, "Jacobson vs. Massachusetts: Impact on Informed Consent and Vaccine Policy," Journal of Pharmacy and Law 5, no. 2 (1996): 249, 260-61, (discussing organized citizen opposition to defeating legislative attempts to repeal philosophical exemptions in state legislatures).
10. Institute of Medicine, "Risk Communication and Vaccination," Workshop Summary 11 (1997).
11. Centers for Disease Control and Prevention, "Update: Childhood Vaccine-Preventable Diseases-United States, 1994," Morbidity and Mortality Weekly Report 43 (1994): 718.
12. See e.g., Alan R. Hinman, "Immunizations in the United States," Pediatrics 86 (1990): 1064; Walter A. Orenstein et al., "Barriers to Vaccinating Preschool Children," Journal of Health Care Poor Underserved 1 (1990): 315; Elizabeth R. Zell et al., "Low Vaccination Levels of U.S. Preschool and School-Age Children: Retrospective Assessment of Vaccination Coverage, 1991-1992," Journal of the American Medical Association 271 (1994): 833.
13. Georges Peter, "Current Concepts: Childhood Immunizations," New England Journal of Medicine 327, no. 25 (1992): 1794.
14. Peter A. Briss et al., "Reviews of Evidence Regarding Interventions to Improve Vaccination Coverage in Children, Adolescents, and Adults," American Journal of Preventive Medicine 18 (2000): 97, 104.
15. See Abigail Shefer et al., "Improving Immunization Coverage Rates: An Evidence-based Review of the Literature," Epidemiological Reviews 21, no. 1 (1999): 96-124.
16. Daniel E. Salmon et al., "Health Consequences of Religious and Philosophical Exemptions From Immunization Laws," Journal of the American Medical Association 282 (1999): 47.
17. Centers for Disease Control and Prevention, "Reported Vaccine-Preventable Diseases-United States, 1993, and the Childhood Immunization Initiative," Morbidity and Mortality Weekly Report 43 (1994): 57; General Accounting Office, Vaccines for Children: Critical Issues in Design and Implementation (Washington, D.C.: GAO, 1994).
18. See, e.g., Gretchen Flanders, "Vaccinations: Public Health's Miracle Under Scrutiny," State Legislatures (Denver: NCSL, March 2000) [www.ncsl.org/programs/pubs/300vacc.htm#miracle].
19. 42 U.S.C.A. §§300aa 1 (1997).
20. U.S. Department of Health and Human Services, 6 Common Misconceptions about Vaccination (and how to respond to them), (Washington, D.C.: DHHS, 1996).
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