Pages Navigation Menu


by Kayla Hardesty

In early 2015 “The Happiest Place On Earth,” felt more like “The Scariest Place On Earth” with at least 117 reported cases of measles being linked to the famous California theme park, Disneyland. These 117 cases spread to at least seven other states as well as two neighboring countries. Measles is a highly contagious air borne disease; after exposure to only one infected person, as many as 90% of unvaccinated individuals can catch the deadly disease.

Further, although vaccines are incredibly efficient at thwarting the spread of disease, no vaccine is 100% effective. Thus, an outbreak of measles or any other highly contagious disease within the same population poses a danger not only to unvaccinated individuals, but to vaccinated individuals as well. This was unfortunately the case for at least eight fully vaccinated individuals who contracted measles as a result of the
Image result for measles
Disneyland outbreak. Shockingly, according to the World Health Organization, despite the availability of a safe and cost-effective vaccine, measles still remains one of the leading causes of death among young children. All of this begs the question, “Why would anyone not vaccinate their child?”

“. . . There are manifold restraints to which every person is necessarily subject for the common good.”

Aside from medical exemptions for physician verified medical conditions that prevent vaccination, is there a legitimate reason not to vaccinate your child? Forty-eight states and the District of Columbia believe that there is, permitting either religious or philosophical exemptions to mandatory immunizations for public school children. Is there a constitutional right to these exemptions? Although many people would assume that there is, non-medical immunization exemptions are not actually guaranteed by the Constitution. Over a century ago in 1905, the United States Supreme Court decided Jacobson v. Massachusetts, often regarded as the most important judicial decision in public health. The decision upheld the authority of states to pass compulsory vaccination laws under their police power authority, noting that “. . . liberty secured by the Constitution . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.” With no constitutional obligation to provide non-medical exemptions, why then do states permit them?

New York was the first state to permit non-medical exemptions under § 2164 of the New York Public Health Law in 1966. As a direct result of lobbying by the Christian Scientists, an exemption for membership with a religion that holds teachings contrary to immunization was formed. Christian Scientists believe that illnesses are only spiritual disorders and should be treated with prayer as opposed to medicine such as vaccines. Non-medical exemptions soon became the status quo, leading to forty-eight states (but not Mississippi and West Virginia) allowing religious exemptions, and twenty states even permitting philosophical exemptions. Today the vast majority of exemptions are granted for either religious or philosophical reasons.

Philosophical exemptions to mandatory vaccination laws allow parents to avoid vaccinating their children for practically any reason, often by just signing a form. Throughout the past decade, states that allow philosophical exemptions have also been the states with the higher rates of disease outbreaks. Researchers suspect that philosophical exemptions are sought as a way of addressing concerns regarding vaccine safety and efficacy.

Exemptions are increasing, as more parents grow hesitant and fearful of vaccination. Although many parents question the safety of vaccines, experts say that it is their very refusal to immunize that risks their children’s health. Both the American Academy of Pediatrics and the Centers for Disease Control (CDC) and Prevention have vouched for the safety of today’s vaccine regimen, insisting that vaccines are not toxic or taxing to a normal immune system. In addition, the CDC estimates that the likelihood that an individual will have a severe allergic reaction to a vaccine is over one in a million. Dr. Dyan Hes, the medical director of Gramercy Pediatrics in New York City analogized that “you have more chance of being eaten by a shark when you go to the beach” than having a bad reaction to a vaccine. Yet still, anxieties persist.

Anxieties regarding vaccines stem from a notorious study that purported a link between childhood vaccinations and autism by a researcher named Andrew Wakefield in 1998. Even though his research has since been found to be fraudulent, the damage to public health continues to be fueled by unbalanced media reporting and ineffective responses from the government, researchers, journals and the medical profession. Additionally, although most parents believe the vaccine information they receive from their children’s doctors, one study from the Journal of Pediatrics found that nearly one in four parents trust what celebrities say about immunization safety.

One such celebrity is Jenny McCarthy. McCarthy is a former Playboy playmate and TV personality and has been described as the “leading light of the anti-vaccine movement.” McCarthy began her public crusade against vaccinations in 2007 after announcing her son’s autism diagnosis, suggesting that his autism was linked to the MMR vaccination that he had received. McCarthy published several books referencing her suspicions and was quickly treated as an expert on the topic by the media, being interviewed by big names like Oprah, and Larry King. The publicity glorifies McCarthy’s dangerous campaign as she continues influencing parents with her urban legend.
Image result for jenny mccarthy 
Further, because we live in an era in which we rarely see many vaccine-preventable diseases, the risk of these diseases seems minimal, while the perceived risk of vaccination becomes larger. Dr. Karen Sawitz, a pediatrician with Union Community Health Center in New York City opined that without ever seeing someone suffer from measles or pertussis, people do not realize how horrible these diseases are. That in a sense, “[t]he vaccine program is a victim of its own success[.]” Coined a “vaccine confidence gap,” this dangerous trend must be addressed by the public health community to ensure that vaccines are safe and that children get vaccinated.

In addition to public health, exemption laws also threaten the education of public school children. In states that implement “social distancing” policies, unvaccinated students are barred from school during the outbreak of a vaccine preventable disease. Social distancing protects the unvaccinated children from catching the disease, and also prevents the spread of the disease. But, the policies are problematic because unvaccinated children are forced to miss school often for at least twenty-one days and in some cases up to fifty days, depending on the school district. When an unvaccinated child is barred from school, it means missed classroom instruction and also social stigma that the child faces from the fact that they were under quarantine.

However, children in West Virginia and Mississippi, which allow only medical exemptions, do not have to worry about policies barring them from school. The two states that historically do not permit non-medical exemptions to mandatory immunization are also among the states with the lowest average instances of pertussis in the country; this is likely not a coincidence. Further proof comes in respect to the massive number of Measles reports nationwide in 2014 and 2015, with Mississippi not reporting a single case since 1992, and West Virginia not reporting one since 1994. These statistics did not fall upon deaf ears, with California, in the aftermath of the Disneyland outbreak, enacting a bill in June 2015 to repeal their non-medical exemptions. In July 2016 California will join West Virginia and Mississippi, becoming the third state to allow only medical exemptions to mandatory immunizations.

With 644 cases of measles from 27 states reported in 2014, and as many as 178 cases already reported in 2015, it is time for a change. Although New York provided a valiant effort to allow a freedom to its parents, the freedom is now a danger, leading to increases in vaccine preventable disease outbreaks and to lapses in education. It is time that every state put the public health, welfare and education of its citizens above a preference that is not constitutionally guaranteed. It is time that every state repeal all non-medical exemptions to mandatory immunization.

Kayla Hardesty is Notes & Comments Editor for the Journal of Civil Rights and Economic Development ’15-’16.  She is a candidate for J.D. in June 2016.

The pictures used herein and in the slider are not the property of the author and can be found at the following web addresses:


  1. THIS WAS AMAZING. PLEASE MARRY ME. #measles #itstimeforachange

  2. WOW. What an article! Informative, insightful, engaging, well written and thorough. I can’t believe how much I learned and how poorly versed I was on this topic! Call me crazy, but is the author single? I am totally smitten.

    Thank you for posting!