By Lillian Bales
In recent weeks, attention has been on both the benefits and harms of vaccinating children.[1] Fueled mostly by the measles outbreak originating in Disneyland, the conversation has centered on parents who choose not to vaccinate their children out of fear that vaccinations cause autism and other complications.[2] What many of these anti-vaccination parents fail to consider is the potential for liability in any cases where the transmission of the disease is traced to their unvaccinated child.[3]
In January 2015, the confirmed number of measles cases in the United States reached 102 in 14 states.[4] In 2014, there were 644 confirmed cases in 27 states – more than double the number of cases in each year of the preceding decade.[5] The Center for Disease Control and Prevention (CDC) has announced that a majority of the measles cases were unvaccinated.[6] While measles was eradicated in the United States in 2000, due in large part to our vaccination efforts, there is still a great prevalence of measles throughout Europe, Asia, Africa, and the Pacific.[7]This means that the threat of measles was and is a very real danger.[8] In our global world, with constant international travel, the threat of measles spreading to the United States has been an everyday fight – with vaccinations as our strongest weapon.[9]
Currently, only two states, Mississippi and West Virginia, require vaccinations and do not allow personal belief exemptions.[10] In California, the source of the current measles outbreak, parents can exempt their children from public and private school vaccination requirements based on any personal objection to vaccination – no other reason required.[11] With a majority of the personal belief exemptions coming from affluent and well-educated families, the concern of vaccinations costs being too high is not a main driving factor in the choice not to vaccinate children.[12]
In a 2014 article, Dorit Rubenstein Reiss argued that parents who chose not to vaccinate their children were usually negligent under the law.[13]According to Rubinstein, a person does not have to know that his or her choice is risky to be negligent.[14] Based on the abundant information from tested and proven scientific data available, a parent should reasonably know that they are making an unreasonable or reckless choice given the harm that could result in the greater community.[15]Any subjective, albeit sincere, belief that one’s choice is the right one does not make the choice any less negligent or pose any less of a risk.[16]
One suggestion for parents against vaccinations is a “no fault” tax or fee paid as an exemption price to cover the costs of injury to others.[17] In this case, a parent would be charged according to an actuarial set cost for their decision to not vaccinate their children.[18] The money earned would go toward compensation for injured families and to public health authorities.[19] However, this does not account for the innumerable harms caused by the unvaccinated families who are not only willing, but also more than able to pay.[20] By vaccinating children, parents are preventing the spread of harmful diseases.[21] Rather, the no-fault tax is based on the hope that the fee will cover the costs of subsequent outbreaks.[22] This is why arguments for inflexible vaccination mandates exist.[23] The idea of a no-fault fee allows those to pay, and does not close the increasing gap of un-protected Americans.[24]
Many anti-vaccine proponents argue the risks associated with vaccinations are too different from child to child for an inflexible vaccine mandate.[25] With a federally suggested 69 doses of 16 vaccines per child, it is easy to see how some parents may be concerned.[26] Not to mention, in many children there is a sincere need to prevent vaccination, such as a child undergoing chemotherapy or children known to have severe medical reactions to vaccines.[27] However, the harms of unvaccinated children, as we have seen, lead to a recurrence of a disease thought to have been eradicated in the United States.[28]
The current goal of the American legislature needs to be finding a middle ground that urges or even requires vaccinations, where medically applicable, to prevent the known harms of an unprotected generation of Americans.[29] In this situation, the power of the minority choice will have deadly consequences.[30]
[1] Steven Salzberg, Anti-Vaccine Movement Causes Worst Measles Epidemic In 20 Years, Forbes (Feb. 1, 2015, 8:00 AM),https://www.forbes.com/sites/stevensalzberg/2015/02/01/anti-vaccine-movement-causes-worst-measles-epidemic-in-20-years/.
[2] Id.
[3] Michael Hiltzik, The Disneyland Measles Crisis: How to Make Negligent Parents Pay, L.A. Times (Jan. 28, 2015, 1:17 PM),https://www.latimes.com/business/hiltzik/la-fi-mh-the-disney-measles-crisis-20150128-column.html#page=1.
[4] Measles Cases and Outbreaks, CDC.gov (Feb. 2, 2015),https://www.cdc.gov/measles/cases-outbreaks.html.
[5] Id. (noting that 383 of the 2014 cases occurred among unvaccinated Amish in Ohio).
[6] Id.
[7] Id.
[8] Id.
[9] Oona Goodin-Smith, Voices: Who is Calling the Shots on the Measles Vaccination?, USA Today (Jan. 31, 2015, 9:46 AM),https://college.usatoday.com/2015/01/31/voices-who-is-calling-the-shots-on-the-measles-vaccination/.
[10] Steven Salzberg, Anti-Vaccine Movement Causes Worst Measles Epidemic In 20 Years, Forbes (Feb. 1, 2015, 8:00 AM),https://www.forbes.com/sites/stevensalzberg/2015/02/01/anti-vaccine-movement-causes-worst-measles-epidemic-in-20-years/.
[11] Id.
[12] Michael Hiltzik, The Disneyland Measles Crisis: How to Make Negligent Parents Pay, L.A. Times (Jan. 28, 2015, 1:17 PM),https://www.latimes.com/business/hiltzik/la-fi-mh-the-disney-measles-crisis-20150128-column.html#page=1.
[13] Dorit Rubinstein Reiss, Compensating the Victims of Failure to Vaccinate: What Are the Options?, 23 Cornell J.L. & Pub Pol’y 4 (2013).
[14] Id. at 7.
[15] Id.
[16] Id.
[17] Hiltzik, supra note 12.
[18] Reiss, supra note 13, at 38.
[19] Id.
[20] Hiltzik, supra note 12.
[21] Id.
[22] Id.
[23] MaryJo Perry, Let Parents Make Informed Choices: Opposing View, USA Today (Jan. 27, 2015),https://www.usatoday.com/story/opinion/2015/01/27/vaccines-mississippi-parents-for-vaccine-rights-editorials-debates/22435889/.
[24] Hiltzik, supra note 12.
[25] Perry, supra note 23.
[26] Id.
[27] Steven Salzberg, Anti-Vaccine Movement Causes Worst Measles Epidemic In 20 Years, Forbes (Feb. 1, 2015, 8:00 AM),https://www.forbes.com/sites/stevensalzberg/2015/02/01/anti-vaccine-movement-causes-worst-measles-epidemic-in-20-years/.
[28] Id.
[29] Hiltzik, supra note 12.
[30] Id.