By Amanda Bronstad, The National Law Journal

Legislatures push to restrict exemptions, but opponents argue that personal freedoms are jeopardized.
As a nationwide measles outbreak grows, state legislatures are pushing through bills that would make it harder for parents to opt out of vaccinating their children.
On Feb. 4, legislators in California, where a measles outbreak at Disneyland last month drew national attention, introduced legislation that would eliminate vaccination waivers except for medical reasons, such as weakened immune systems. Bills pending in that state and in at least two other states come as parents with increasing fears about their children’s exposure to measles and other diseases have few legal options to combat the growing numbers of those who choose not to vaccinate.
“There seems to be more support for tightening up these nonmedical exemptions,” said Diane Peterson, associate director for immunization projects at the Immunization Action Coalition in St. Paul. As of Jan. 30, the measles outbreak had infected 102 people from 14 states, according to the U.S. Centers for Disease Control and Prevention.
All states allow children to be exempted from vaccination mandates for medical reasons. But the vast majority of parents of unimmunized children have obtained waivers for religious reasons or, more commonly, based on their personal or philosophical beliefs. Nonmedical waivers are allowed in 48 states, including California. Many people who opt out of vaccinating their children believe inoculations have caused seizures and brain disorders.
Schools and day care centers in states including California and Nevada with reported or suspected cases of measles have sent unvaccinated students home, and President Barack Obama, along with Republican presidential hopefuls Gov. Chris Christie of New Jersey and Sen. Rand Paul of Kentucky, have weighed in on the debate.
Barbara Loe Fisher, co-founder and president of the National Vaccine Information Center in Sterling, Va., which advocates for parents who want to choose whether to vaccinate, said the clash between those concerned about public safety and those pushing for personal choice had gotten “extreme” and “ugly.”
“This is a civil liberty issue, it’s a human rights issue,” she said. “It’s a violation of the informed-consent principle that underpins the ethical practice of medicine.”
But a backlash against the antivaccination movement began hitting state legislatures about four years ago. In 2011, Wash­ing­ton state passed a law requiring that parents meet with a health care professional to discuss the risks and benefits of vaccines before obtaining an exemption. California, Oregon and Vermont have since passed similar laws, and state health officials in Michigan instituted comparable changes effective Jan. 1.
Parents in those states now must consult a medical provider or, in some cases, view or read specific educational materials about vaccines before qualifying for exemptions. This year, similar legislation has been introduced in Maine and Minnesota. And the latest proposal in California would wipe out the vast majority of that state’s waivers altogether.
OPPOSITION TO CHANGE
Parents who choose not to vaccinate are fighting the changes. In Colorado, pressure from vaccine opponents killed a portion of a 2013 law that would have required opt-out parents to confer with a medical provider. Legislators in West Virginia and Mississippi have introduced bills this year that would add nonmedical exemptions for the first time. And bills in New York and Montana, which allow exemptions for religious reasons, would begin to allow waivers based on personal beliefs. Fisher said many parents remain concerned about exposing their children to vaccines. “We will continue to stand up for this informed-consent principle,” she said.
OPINION: States Must Tighten Laws That Let Parents Opt Out of Vaccinating Kids
In the meantime, schools are reviewing their policies, said Caryn Pass, a partner at Washington’s Venable who represents 250 independent schools across the nation. Policies differ, but many schools generally keep unimmunized children home if they’ve been exposed to a contagious disease. Some now are considering sending all unimmunized students home.
“This is a hot issue,” Pass said. “You’re seeing more policies being drafted. Schools that didn’t necessarily have these policies are putting them in effect.”
LAWSUITS LIMITED
Legal experts are polarized over whether vaccination disputes could spill into the courts. “I’ve talked to people who are thinking about it, but the good news is we haven’t come across a discussion where someone at this point was seriously harmed or killed by the situation,” said Dorit Reiss, a professor at the University of California Hastings College of Law who focuses on tort liability over vaccines.
So far, the vast majority of lawsuits have come from parents who allege their children were injured by vaccinations. As part of the National Childhood Vaccine Injury Act of 1986, the U.S. government established a victim-compensation fund within the U.S. Court of Federal Claims.
Parents have sued schools that sent their unimmunized children home — although those cases haven’t been successful. On Jan. 7, the U.S. Court of Appeals for the Second Circuit found that state officials in New York had the legal authority to prohibit unimmunized children from attending school during a chicken pox outbreak. Parents of those children had alleged violation of their constitutional right to practice their religion.
A lawyer for the parents, Patricia Finn, has filed a petition for a rehearing. She said the courts have inaccurately applied a rational-basis standard when relying on the U.S. Supreme Court’s 1905 decision in Jacobson v. Commonwealth of Massachusetts, in which the court held that mandatory vaccinations were within the police power of the state.
“The court was mistaken, and if I could get the court to take a look at this with heightened scrutiny, we’d probably have a better chance,” said Finn, of Patricia Finn Attorney P.C. in New York.
Whether parents have any basis for a tort action against a school, health clinic or even the parents of an unimmunized child is the subject of academic debate. Schools are largely protected because they’re following the law, and doctors have duties to treat everyone — not just vaccinated children.
Reiss believes the parents of an unimmunized child could face liability for having breached an implied duty to vaccinate. “There’s a pretty viable suit against another family if they infect a child,” she said.
Mary Holland, a research scholar at New York University School of Law who studies vaccines, disagreed. Vaccines, she said, come with their own risks. And parents who get exemptions aren’t doing anything illegal. “Trying to make a claim there’s negligence when there are lawful exemptions is very problematic,” she said.
IMAGE: STUCK: A measles epidemic called attention to permissive waiver rules.
Robyn Beck / AFP / Getty Images
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