Children Have a Right to Live and Be Vaccinated, and Two Legal Reforms Are Needed

Posted in: Juvenile Law

The steep uptick in diseases that were previously thought to be extinct—measles and mumps—is a clarion call for us to do better as a society to protect infants, children, pregnant women, and the elderly. Children, unless they have an illness or disability that makes immunization dangerous, need childhood vaccination for their own sake and the larger culture’s. At the turn of the century, we actually reached herd immunity on many dangerous childhood diseases because of vaccines.

Now, these vulnerable groups are at heightened risk from serious disease because too many Americans aren’t vaccinated and become carriers. We are under the levels of vaccination needed for “herd immunity,” which is when the disease becomes eradicated for all intents and purposes. These previously conquered diseases are back in force.

Why aren’t enough children vaccinated? Because too many parents have failed to do so. They don’t for religious reasons, junk science reasons, and because some just don’t get around to it. This has to stop, and there are two paths to this end, as I will describe below.

There have now been 626 cases of measles and 426 cases of mumps documented in 2019, which accounts for a 184.5% increase in measles and a 5.4% increase in mumps cases reported in the United States since 2011. These diseases have the capacity to make those infected suffer and, in some circumstances, die. Measles can result in acute encephalitis, or inflammation of the brain, causing permanent and sometimes fatal brain damage. One out of every four cases requires hospitalization. Pregnant women are particularly at risk, as measles can cause miscarriage, preterm birth and low birth-weight.

Death resulting from mumps is very rare; yet, there are serious potential complications given the intense facial inflammation and swelling, including development of deafness or pancreatitis. The 2019 outbreak of these diseases brings to the forefront the intersection of religious liberty, parental rights, and children’s civil rights.

One of the interesting juxtapositions in the course of the United States’ recent religious liberty culture wars has been the coexistence of arguments from conservative religious corners against abortion and against government oversight of parenting. They say that a fetus has a “right to life,” but fight for parents to have unfettered rights to raise their children according to their religious lights—even if the child suffers or dies from the parents’ treatment. The best example of the latter is the incredible and ongoing willingness in Idaho of lawmakers to let known religious organizations let their children die of easily treated illnesses.

This conjunction of arguments for fetus’ rights to life and parents’ rights to deny medical treatment and vaccination results in the conundrum that an unborn child would have a greater right to life than a child who has been born. I mean this in the literal sense: the right to live. It is morally and legally wrong to protect the unborn more than the born. Whether or not we agree on the rights of the fetus, it is a fact that children have a constitutional right to life and protection from harm under the Fourteenth Amendment, including a right to avoid preventable illness and death—even when their parents’ religious or philosophical beliefs say otherwise. The Supreme Court said as much when two important cases are read together: the 1905 decision in Jacobson v. Massachusetts, which held that states have the power to make vaccination compulsory in the public interest and the 1944 decision in Prince v. Massachusetts, where the Court stated:

The family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither the rights of religion nor the rights of parenthood are beyond limitation…. The right to practice religion freely does not include the right to expose the community or the child to communicable disease or the latter to ill-health or death….

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.

This language opens the door to mandating that parents get their children vaccinated. But many states have created religious (and even philosophical) exemptions to vaccine mandates. In effect, they have chosen the route of making children martyrs to their parents’ choices.

The First Legal Reform Needed: Eliminate Religious Exemptions to Mandatory Vaccination

The right public policy for the greatest good is to have as many children vaccinated as possible. We have failed to reach that goal, however, because of misguided religious exemptions for parents from the vaccination laws and the foolishness of some who ignore the actual, deep science of vaccinations, which shows them to be safe and effective. The country needs to look to California, where a serious measles outbreak at Disneyland led lawmakers to roll back the philosophical and religious exemptions to its vaccination law. Every state needs to consider leaving solely a medical exemption in place so we can build back the “herd immunity” that is needed to eliminate these diseases again.

A hero in the civil rights movement for children, Rita Swan, whose fight for children’s rights was memorialized in Dr. Paul Offit’s remarkable book, Bad Faith, has fought for decades to repeal the religious exemptions in various states that permit parents to avoid vaccination of their children (and/or permit them to deny routine medical treatment). Religiously conservative and libertarian lawmakers have embraced the religious exemptions that have permitted parents to deny vaccination and medical treatment, but they also have not been fully informed of the harm to society. This year’s sharp increase in childhood diseases is a warning sign that their instinctual preference for parental power comes at too high of a price to the rest of society.

I support Swan’s proposition that parents’ religious exemptions to mandatory vaccination of their children should be repealed, and soon. New York has been at the center of this year’s problems, because ultra-Orthodox Jews failed to vaccinate many children. Public health officials have been struggling to keep up with the spread of the disease as they have instituted quarantines where necessary. A bill to end the religious exemption has been introduced in the New York legislature by Sen. David Carlucci more than once, and again this year as Senate Bill S2994.

The sad political problem at this moment in history is that whenever religion is wrapped around a public policy, the politics of repeal are nearly insurmountable. Even when the lives of infants, children, pregnant women, and the elderly are at risk, we live in an era of extreme religious liberty that preaches that one’s faith is to be protected at all costs, including when third parties are harmed. I believe the next generation will walk away from this selfish approach to the world, but it remains reality in many states.

The Second Reform Needed: Let Mature Children Have a Say on Whether They Are Vaccinated

There is another way to ensure that vaccination increases. Let’s quit looking at this solely from the perspective of adults. Instead, let’s look at this as a children’s rights issue as the Supreme Court stated so eloquently in the quote from the Prince opinion above. Let’s empower children to protect their own health, regardless of their parents’ beliefs.

That is exactly what another New York bill, Senate Bill S4244, would accomplish by giving children 14 and over the right to choose vaccination regardless of their parents’ objections. The bill is quite simple: let children choose health and life by getting vaccinations.. This is a straightforward and common-sense proposition. It’s a call for a child’s right to life and health, and it is reflected in other states.

New York’s approach is part of the national trend toward letting “mature minors” make medical and other decisions about their own well-being. Currently 18 states have mature minor provisions. They include: Alabama, Alaska, Arkansas, Delaware, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Montana, Nevada, Oregon, Pennsylvania, South Carolina, Tennessee, Washington, and West Virginia.

Children deserve to live free from preventable disease, and infants, ill children, pregnant women, and the elderly deserve not to be exposed to preventable diseases. To move the United States down that righteous path, let’s roll back the misguided exemptions and give mature children the right to choose vaccination.

Posted in: Juvenile Law

Tags: vaccinations

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