During the days of Prohibition, an unlikely coalition formed between bootleggers and Baptist. Both groups supported the Eighteenth Amendment, albeit for very different reasons. Baptist saw alcohol as a vile intoxicant that ruined families; bootleggers were able to exact higher prices for their illicit liquor without competition from legal retailers.

Today, another unlikely coalition is forming on opposite ends of the political spectrum. Despite their many polarized opinions, affluent liberals and Tea Party Republicans find themselves in agreement on one growing issue: mandatory vaccinations. Measles, a disease that was officially “eradicated” in 2000 after forty years of effective vaccination, is making a comeback. A growing number of affluent Americans (especially in liberal counties of California) resist vaccinations, not for religious reasons, but out of fear that vaccinations cause autism in children. On the other end of the political spectrum, small government and anti-regulation politicians like Dr. Rand Paul object to government interference with parents’ decisions.

This belief was spurred in large part by a 1998 study by Andrew Wakefield, a doctor who was later found guilty of misconduct and stripped of his medical license after it was revealed that he accepted money from a lawyer hoping to sue pharmaceutical companies. This study was withdrawn by the publisher, but nonetheless gained popularity among affluent Californians before infecting other parts of the country.

Despite the origins or credibility of this theory, the anti-vaccination movement sparked a serious political and legal debate in America. State law regulates vaccination requirements, although all states impose some level of vaccination before children enter public schools. However, States also allow for religious and philosophical exceptions to the mandatory vaccinations. The recent outbreaks have led some to insist that these exceptions are being abused to the detriment of society as a whole.

These concerns have led some to suggest that States should do away with philosophical and religious exceptions, or at least raise the burden of acquiring such an exception. However, uniform regulation that fails to account for religious differences (not to mention potential First Amendment litigation) is never politically popular. Another interesting alternative that might avoid the political uncertainty of forcing states to eliminate religious and philosophical exceptions is the use of tort law. The article, written by Anthony Ciolli in the Yale Journal of Biology and Medicine, advocates for class action liability regime for the unvaccinated, derived from Federal Rule of Civil Procedure 23. In addition, there may be an argument for Congressional regulation–if politically feasible–based on the Commerce Clause. Given the expansion of federal commerce authority (not withstanding cases like Lopez and Morrison), judicial review would be unlikely to overturn legislation mandating certain vaccinations.

Travis Gray

6 Responses to Don’t Call It a Comeback: Thanks To an Unlikely Coalition, Measles is Back and at the Center of a Debate Over Mandatory Vaccinations

  1. Neil Issar says:

    Edmund – in regards to your second comment, here is my understanding of the issue: there are certain members of the population that cannot receive vaccinations for scientific reasons. This includes babies below a certain age, those with compromised immune systems, those with certain forms of cancer, etc. In order to be protected from the diseases for which others receive vaccinations, these individuals rely on herd immunity (a.k.a community immunity): the fact that a disease is less likely to be introduced into and/or gain a stranglehold among members of a population when a large proportion of that population is immunized against that disease. This is particularly important for the diseases that the MMR vaccine protects against – measles, mumps, and rubella – since all three diseases can be transmitted via airborne droplets.

    The unvaccinated also pose a threat to the vaccinated. This is because vaccinations are neither permanently nor perfectly effective. This is why, during an outbreak of a vaccine-preventable disease, an unvaccinated child can increase the risk of disease for everyone that may be exposed, even if the people who have been vaccinated vastly outnumber those who have not. Two doses of the MMR vaccine confers lifelong immunity to more than 99% of recipients, so it is highly effective, but not perfect. However, vaccine failure and waning immunity pose greater concern with vaccines for other diseases (e.g., pertussis immunity with the TDap vaccine). Some studies have shown the efficacy of current pertussis vaccines to be as low as 60-70%, and this protection decreases over time post-vaccination. This is why getting vaccination boosters and multi-dose vaccinations is as important as getting vaccinations at all. For some background reading: http://bit.ly/1vAPfBX or http://bit.ly/1ALZrh0 (more readable).

    Given the above, I have yet to hear a compelling argument against vaccination. Religious doctrine? Not buying it (http://nyti.ms/1L1VcyQ). Autism and/or thimerosal concerns? Completely debunked (http://bit.ly/1vRqRS9, http://bit.ly/1jscxIs). Merely a question of individual choice? Not when it has such serious, potentially life-threatening consequences for others, particularly children. Are there side effects of the vaccine? Yes, but the chances of having a serious side effect are so low (literally less than 1 out of a million for the MMR vaccine, http://www.cdc.gov/vaccines/vac-gen/side-effects.htm) that they don’t even come close to forming a legitimate case against vaccination.

  2. Jackson Sattell says:

    Very interesting. Never really thought about the legal angle on this whole topic. It is always seems to be a problem when the law tries to get involved in touchy subjects like this. Legal actors can either be seen as saviors or power hungry individuals trying to push an agenda. Hopefully this whole issue can be resolved in an intelligent manner.

  3. Edmund Semmes says:

    On another note, can anyone clarify why children without measles vaccinations are a threat to children with the vaccination? Or are they a threat? I got tripped up in a conversation with someone who hadn’t been vaccinated. I couldn’t think of a compelling reason for federal regulation unless people who followed the norm were endangered.

  4. Edmund Semmes says:

    Not vaccinating your children seems stupid to me; anti-vaxxer arguments just seem paltry in comparison to the scientific data available indicating the value and relative security of modern vaccines. However last week on the Nightly Show, they were discussing the anti-vaxxer movement. One of the panelists was a talk show host who had had a mother on her show who’s son developed an infection of some sort from the vaccination shot and died. The mother refused to vaccinate her next child. I have a hard time not sympathizing with the mother; although I realize that a freak accident should not rationally change her decision, I would feel uncomfortable preventing her from making that decision. My point is that any regulation should be sensitive to certain reasonable idiosyncrasies like these. But I wonder if such sensitivity would negate the effectiveness of regulation.

  5. Neil Issar says:

    The idea of a religious exemption (distinct from philosophical exemption or those claiming an exception premised on “personal belief”) to vaccination is also interesting. As far as I know, the vast majority of the world’s major faiths have no explicit prohibitions against oral or injected vaccines. While certain public figures and politicians have made statements that may exacerbate false beliefs about the supposed harms of vaccinations (e.g. Sen. Rand Paul claiming he had heard of children who wound up with “profound mental disorders” after getting vaccines), the reality is that the science is clear. The reemergence of vaccine-preventable diseases despite the clear evidence about the importance of vaccination supports eliminating all religious exemptions, at the very least.

  6. Neil Issar says:

    Most anti-vaxxers have seen the deluge of data and scientific information that support vaccination, but remain obstinately anti-vaccination. The only way to get people to vaccinate may be to force the issue (for example, by removing or raising the bar for religious exemptions, as you wrote). I think Mississippi and West Virginia have taken the correct approach by limiting vaccine exemptions exclusively to children who cannot be vaccinated for medical reasons (e.g. immunocompromise).