University of California, Hastings College of the Law UC Hastings Scholarship Repository

Faculty Scholarship

2019

The Law and Resistance

Dorit Rubinstein Reiss UC Hastings College of the Law, [email protected]

Follow this and additional works at: https://repository.uchastings.edu/faculty_scholarship

Recommended Citation Dorit Rubinstein Reiss, The Law and Vaccine Resistance, 363 Sci. 795 (2019). Available at: https://repository.uchastings.edu/faculty_scholarship/1738

This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. EDITORIAL The law and vaccine resistance

ast week, the Centers for Disease Control and What can be done? States have extensive leeway to Prevention announced that more than 100 protect , and courts have consistently up- cases of measles, spanning 10 states, had been held strong school mandates. Thus, states reported in the United States since the begin- could tighten nonmedical exemptions (for example, by ning of the year. This news came on the heels requiring consultation with a doctor) or remove these of the World Health Organization’s estimate of exemptions completely from school mandates. Valid over 200,000 cases of measles in 2018. These medical exemptions are important, but it is less clear Lnumbers signal the reemergence of a preventable, whether nonmedical exemptions are appropriate. Some deadly disease, attributed in significant part to vac- scholars are concerned that eliminating nonmedical ex- Dorit Rubinstein Reiss cine hesitancy. Communities and nations must seri- emptions may generate resentment among parents and is a professor of Law ously consider leveraging interfere with parental au- at the University of Downloaded from the law to protect against tonomy. Others—including California, Hastings the spread of this highly professional medical asso- College of the Law, contagious disease. ciations—disagree, because San Francisco, CA In the United States, mea- mandates protect children, 94102, USA. reissd@ sles was deemed “eliminated” and a parent’s freedom to uchastings.edu

in 2000 because of vaccina- send an unvaccinated child http://science.sciencemag.org/ tion success. Since then, its to school places classmates reemergence has been as- at risk of dangerous diseases. sociated with a resistance to There is a strong argument . This also reflects for removing nonmedical the fact that unvaccinated exemptions, and at the least, U.S. residents visit countries they should be hard to get, to that have seen large measles further incentivize parents outbreaks (such as Ukraine, to vaccinate. In many states, the Philippines, and Israel), however, getting an exemp-

become infected, and bring tion is as easy as checking on November 19, 2019 the disease back home. a box. States and localities Outbreaks in the United could also require schools to States are still fewer than provide their immunization in, say, Europe because of rates to parents at the start unique U.S. policies and “…societies should…not hesitate of the school year. laws that maintain high Beyond school mandates, vaccination coverage. All to use the law to prevent deadly states can consider other 50 states and the District diseases from spreading.” legal tools that have not of Columbia have laws yet been used. States could requiring for school and daycare atten- implement workplace mandates for those working with dance. School mandates have proven very effective: vulnerable populations, such as health care workers, The stronger they are, the higher the vaccination rate, teachers in schools, and providers of daycare. States and the lower the risk of outbreaks. The for could impose tort liability (civil law damages for harm) Children Program is a broad federal initiative that when unexcused refusal to vaccinate leads to individu- funds vaccines for children whose families cannot oth- als becoming infected unnecessarily or worse, to a large erwise afford them. There is, however, more that the outbreak. States could permit teenagers to consent to United States can do. There are “hotspots” where vac- vaccinations without parental approval. And states cination rates are low, and these are where outbreaks could mandate vaccinations to enroll in institutions of appear. Recent measles outbreaks—including those in higher education. Washington state and New York—occurred when an is a problem with many compo- unvaccinated individual, after visiting an area where nents. In handling it, societies should improve public measles is endemic, returned to a U.S. community with understanding of vaccinations but also not hesitate to low vaccination rates and infected others (primarily use the law to prevent deadly diseases from spreading. unvaccinated children). –Dorit Rubinstein Reiss

10.1126/science.aax0019 PHOTOS (INSET): ROBYN BECK/AFP/GETTY IMAGES; (TOP RIGHT) FREDERICK REISS RIGHT) FREDERICK (TOP IMAGES; BECK/AFP/GETTY (INSET): ROBYN PHOTOS

SCIENCE sciencemag.org 22 FEBRUARY 2019 • VOL 363 ISSUE 6429 795

Published by AAAS