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The law and immunization in the United States.

Since a months-long measles outbreak at Disney World in California beginning in December 2014, there has been a heightened interest in mandatory vaccinations of children in the United States (Centers for Disease Control and Prevention, 2015b). Disease flare-ups such as this are noteworthy, and to some people frightening, because it is generally assumed that there exists what is known as "herd immunity" (see discussion below) that should prevent such outbreaks. This article discusses the nomenclature, history, and current state of the laws regarding children's vaccinations in the United States. It is assumed that vaccines are effective and that their use outweighs the relatively rare incidences of adverse effects, a position taken by the federal and state governments.

According to the Centers for Disease Control and Prevention (CDC), immunization is the means by which a person is protected against a disease. The terms immunization, vaccination, and inoculation are often used interchangeably (CDC, 2015a). A vaccine is a weakened form or passive form of the disease that is given for inoculation. It is usually administered by injection, by mouth, or sprayed into the nose (CDC, 2015a).

Immunization is straightforward and it can occur two ways. The first way is the natural way, in which the body develops antibodies to the specific disease after exposure, and the immune system is thereafter able to respond to the disease and prevent infection. This was the only way one could be protected until controlled, active vaccinations were developed (CDC, 2015a). Vaccination is equally simple: a person is exposed to a disease such as polio by introducing a small amount of polio into the body. The body reacts to these foreign molecules (non-self) as though it has contracted the disease itself and creates antibodies to fight the polio vaccine. If this person is subsequently exposed to polio, the immune response once established will be triggered again and keep the body polio-free, theoretically forever (CDC, 2015a).

History of immunization

While natural immunization has always existed, the first known vaccinations, for smallpox, are believed to have been used at least as far back as 1000 AD in China. A powder made from smallpox scabs was blown into a person's nose. Another way it was administered was to scratch the matter from an open sore onto another's skin. By the 1700's, smallpox vaccines were encouraged in the United States (The College of Physicians of Philadelphia, 2015a). The modern smallpox vaccine, actually from cowpox, was originally developed in 1796 (The College of Physicians of Philadelphia, 2015a). Interestingly, smallpox is now considered eradicated - the last case in the United States was in 1948 and the last case in the world was in Somalia in 1977 (, 2015).

Another vaccine which is historically significant is the one for polio because it too has effectively controlled the disease. It was developed by Dr. Jonas Salk in 1951 and first administered to children in the United States in 1955. Prior to the vaccine, each year tens of thousands of children were afflicted with this terrifying and paralyzing disease that was often fatal. There have been no U. S. cases since 1993 (The College of Physicians of Philadelphia, 2015b).

Vaccine development continued at a fast pace in the 1800 and 1900s. Louis Pasteur, a chemist in France, developed the vaccines for avian cholera (1879) and rabies (1885). Vaccines for the following came shortly thereafter: typhoid (1899), cholera (1911), diphtheria (1914), tuberculosis (1921), and tetanus (1924). Vaccines for measles, mumps and rubella were developed from 1955-1969 (, 2015). Among the more recently developed vaccines are ones for human hookworm and other parasitic diseases, tuberculosis, Alzheimer's and HIV (Immunization Action Coalition, 2015).

Children in the United States no longer need to be inoculated against the smallpox disease because, as stated above, it is considered eradicated. Other diseases, however, such as polio, measles, and diphtheria, and which are considered contained in the U.S., still exist worldwide. Thus, it is necessary to inoculate for these diseases. For instance, in 2014, an Amish community in Ohio suffered a measles outbreak. It was believed that the measles may have come from the Philippines (CDC, 2015b). Additionally, in 2014-2015 in Pakistan there were approximately 341 cases of polio (Polio--Global Eradication Initiative, 2015).

The number and type of inoculations have steadily increased since the occurrence of a measles outbreak in the U.S. in the 1960's (Gostin, 2015). The 2015 recommended United States Immunization Schedule for children from 0-6 years includes the following vaccines (CDC, 2015c):

* Hepatitis B

* Rotavirus

* Diphtheria, Tetanus, and Pertussis (combined DTaP)

* Hib (Haemophilus influenza type b)

* Pneumococcal

* Polio (inactivated vaccine)

* Influenza

* Measles, Mumps, and Rubella (combined MMR)

* Varicella (chickenpox)

* Hepatitis A

* Meningococcal (certain high-risk groups only)

Mandatory Immunization in the United States

All 50 states have laws that require children older than five years be vaccinated before entering state-licensed day care facilities or public schools (Gostin, 2015). School-aged children are specifically targeted because of the potentially high incidence of transmission in crowded elementary schools (Reiss, 2015). Further, many states require students to be inoculated before they enter college (Gostin, 2015).

The states' right to legislate mandatory vaccines stems from the old common law principle of parens patriae. This is the belief, codified in the law, in the government's responsibility and right to take care of its most vulnerable members of society, including children--it has an obligation to take over control when parents cannot meet certain standards in protecting their children or neglect them (Reiss, 2015; see also the World Health Organization's (WHO) Global Vaccine Action Plan 2011-2020 that states that immunization is a part of everyone's right to optimal health and that government's must provide the vaccines [WHO, 2015]). Both state and federal courts have consistently upheld the government's right to intervene to protect children when necessary (Reiss, 2015). Specifically, intervention has evolved to include children who have the right to be protected "against preventable, potentially fatal diseases such as Haemophilus influenza type b (Hib), polio, measles, and diphtheria" (Reiss, 2015, p. 5). There are exceptions to the mandates: medical and religious exemptions have been held to be constitutional (Dalli v. Board of Education, 267 NE2d 219 [Mass. 1971]).

All 50 states have laws that require children older than five years be vaccinated before entering state-licensed day care facilities or public schools

Massachusetts was the first state to mandate inoculations, requiring smallpox vaccinations for school attendance in 1855. This law was upheld in the United States Supreme Court case, Jacobson v. Massachusetts, 197 U.S. 11 (1905).

The Court held that states had the constitutionally protected power to order smallpox vaccinations because they supported public health.

The rationale for mandatory vaccines includes not just disease prevention for individuals but includes the concept of herd immunity (Reiss, 2015). Herd immunity (herd protection) signifies reduced transmission. It does not mean no cases, but rather a limitation of cases (John and Samuel, 2000). Herd immunity means that if an outbreak does occur, it will be limited and not become an epidemic. Herd immunity has the effect of protecting children who have not been immunized (Reiss, 2015).

Whether or not herd immunity is possible depends upon how infectious the disease is and also how effective the vaccine is to prevent it. A highly contagious disease needs a greater number of vaccinated people in the population to obtain herd immunity; a relatively efficacious vaccine means fewer people need to be inoculated to achieve herd immunity (John and Samuel, 2000). The herd immunity as a result of mandatory immunization of children means that adults in the community are also protected (Gastanaduy, 2013). Additionally, there are studies which have shown that there are greater incidences of disease outbreaks in communities with lower rates of immunization and in communities that allow more exemptions (Atwell, et al., 2010).

Consequences for families who do not vaccinate their child vary from state to state. Children are not allowed to register for school without proper immunizations records. Additionally, if for instance there is a disease outbreak, parents will often have to remove the unvaccinated child (if he or she has been exempted) from school and from sports.

A federal court in New York in 2014 upheld the school district's right to ban unvaccinated children, who had been granted religious exemptions, during a chickenpox outbreak (Mueller, 2014). Also, during an outbreak, the family may be investigated by a state or local health department--perhaps to determine if their child is the cause of the outbreak (CDC, 2012).

Other consequences involve court intervention. In New York State for example, one Family Court found that parents who did not immunize their child during a measles outbreak were guilty of neglect (In re Christine M., 595 NYS2d 606 [Fam. Ct. 1992]). Such a neglect finding often leads to social services intercession and if the neglect persists, can lead to possible removal of the child from the home into foster care.

Additionally, a consequence, which although not yet required but nevertheless propounded by zealous advocates of universal inoculation, is to make parents of an unvaccinated child liable for damages if it can be determined that their child is the source of an outbreak. The parents would be responsible not only for medical costs incurred by the victims but also for deaths. This is consistent with U. S. tort (civil) law, which was developed to "compensate those harmed because of another's unreasonable choices" (Reiss, 2013, p. 1). Some want the parents of unvaccinated children to be prosecuted for criminally negligent homicide if it is established that their unvaccinated child is the cause of another's death (Vara, 2014). The main drawback with these ideas is causation: it is very difficult to pinpoint just who is the original disease carrier (Reiss, 2013).


Our laws reflect what we as a society believe is important; they indicate what we value. The fact that we have mandatory immunizations for children means that a majority of our people place so much importance on the containment and prevention of many common diseases that it cannot and should not be left to individual choice.


Atwell, J. E., Otterloo, J. V., Zipprich, J., Winter, K., Harriman, K., Salmon, D. A., Halsey, N. A., & Omer, S. B. (2013). Nonmedical vaccine exemptions and pertussis in California. Pediatrics (132), 624-630.

Centers for Disease Control and Prevention. (2012). If you choose not to vaccinate your child, understand the risks and responsibilities. Retrieved from conversations/downloads/ notvacc-risks-color-office.pdf

Centers for Disease Control and Prevention. (2015a). Immunization: The basics. Retrieved from

Centers for Disease Control and Prevention. (2015b). Measles cases and outbreaks. Retrieved from

Centers for Disease Control and Prevention. (2015c).Vaccines. Retrieved from

Gastanaduy, P. A. (2013). Gastroenteritis hospitalizations in older children and adults in the United States before and after implementation of infant rotavirus vaccination. Journal of American Medical Association, 310, 851. doi:10.1001/jama.2013.170800

Gostin, L.O. (2015). Law, ethics, and public health in the vaccination debates. Journal of American Medical Association, 313(H), 1099-1100. doi:10.1001/jama2015.1518

Immunization Action Coalition. (2015). Potential new vaccines 2015-2020. Retrieved from

John, T. J., & Samuel, R. (2000). Herd immunity and herd effect: New insights and definitions. European Journal of Epidemiology (!6), 60i-606.

Mueller, B. (2014, June 22). Judge upholds policy banning unvaccinated students during illness. The New York Times. Retreived from www.nytimes. com/2014/06/23/nyregion/judge-upholds- policy-barring-unvaccinatedstudents-during-illnesses-html?_r=0

Polio--Global Eradication Initiative. (2015). Wild poliovirus type i and circulating vaccine-derived poliovirus cases. Retrieved from /Dataandmonitoring/Poliothisweek.aspx (2015). Vaccines. Retrieved from http:/

Reiss, D. R. (2013). Legal responsibilities in choosing not to vaccinate. Shot of Prevention. Retrieved from

Reiss, D. R. (2015, April 7)). Herd immunity and immunization policy: The importance of accuracy. Oregon Law Review, 94, i-47. Retrieved from http:// papers.cfm?abstract_id=2591591

The College of Physicians of Philadelphia. (2015a). The history of vaccines. Retrieved from

The College of Physicians of Philadelphia. (2015b). The history of vaccines. Retrieved from

Vara, C. (2014). Rights of the unvaccinated child: Criminal law. Retrieved from

World Health Organization (2015). Immunization, Vaccines and Biologicals. Retrieved from

by Abbie Goldbas, MSEd JD

Abbie Goldbas, MSEd, JD has been an attorney at law for 30 years. She used to specialize in Family Court Law and child advocacy. For the past ten years she has limited her practice to appellate law. Her interest in this topic stems from her experiences with children and families in Family Court. She is pursuing her doctoral degree in Health Psychology at Walden University.
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Author:Goldbas, Abbie
Publication:International Journal of Childbirth Education
Geographic Code:1USA
Date:Apr 1, 2016
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