Three years ago, 47 states (all but California, West Virginia, and Mississippi) allowed either philosophical or religious exemptions to school vaccine requirements – including New York. New York didn’t allow philosophical exemptions but did allow parents to avoid vaccinating their kids for school by declaring that they held a “genuine and sincere religious belief” against such a requirement.
Towards the end of 2018, news reports emerged about a small number of measles cases occurring in Rockland County, a suburb of New York City directly across the New Jersey state line. The CDC believes the measles virus came to New York by way of travelers from Israel, a country which at the time was experiencing a significant outbreak of measles nearly six thousand miles away.
As the number of measles cases in the New York metropolitan region steadily increased towards full outbreak status, I received a media inquiry about a bill my Assemblyman proposed several years earlier. In 2015, a measles outbreak at Disneyland spurred the state of California to pass legislation eliminating all non-medical exemptions to school vaccine requirements. That legislative action inspired a similar bill in New York, but it had been stalled since 2015
The reporter wanted to know if we planned on reintroducing our vaccine bill again in 2019. 2019 was the first year of a new two-year legislative session — and the first in a decade that offered Democratic majorities in both chambers of the legislature – and every legislator had to reintroduce all of their old bills. We did, and we expected the same torrent of hateful emails and spammy social media comments that we got every year. The original bill had stalled, ostensibly because of concerns about the sanctity of the first amendment but more realistically because we had done such an excellent job at eradicating pandemics from our society. Enough parents were choosing to vaccinate their kids, it seemed, that the few who objected did not put others at substantial risk.
Using shared community values to counter anecdotal propaganda
However, like-minded parents are often drawn to each other, and share ideas with each other – resulting in woefully unprotected groups of people vulnerable to certain pathogens. Of particular concern was an early trend of the measles spreading ferociously among Orthodox Jewish communities, which had apparently experienced a surreptitious infiltration of anti-vax propaganda in the form of a glossy pamphlet from the innocuously named “Parents Educating and Advocating for Children’s Health”. This pamphlet was written by and for Orthodox Jewish parents, and it was chock full of disinformation about toxins, autism, the danger of polio, and much more.
Many Jewish leaders, shocked at the spread of anti-vaccine sentiment and misinformation that had taken hold among Jewish families, rushed to promote pro-vaccine materials and tens of thousands of MMR vaccines were administered over the course of 2019 – largely in heavily Jewish communities. They reminded people that Judaism has promoted public health for millennia and that it is important to protect the vulnerable among us – in this case, those who cannot get vaccinated for legitimate medical reasons.
One of the most common arguments made by those who prefer to abstain from vaccination is that they have the right to choose what goes in their own bodies. After all, if other people are so worried about contracting a disease – then they can protect themselves with the vaccine, right? Except, what about those who can’t get the vaccine? What about kids who have survived leukemia, lymphoma, neuroblastoma, or any number of other horrible diseases that damage the immune system? Don’t those kids have the right to be safe at school?
In addition, there are some people who ostensibly support vaccines but are hesitant to make them mandatory because of concern for individual rights – particularly those guaranteed in the First Amendment to the United States Constitution. These people believe everybody should simply choose to get vaccinated based on the merits of such an effort, but that forcing someone to participate in a medical procedure is antithetical to the ideals of modern democracy. On the surface, this argument seems eminently reasonable. After all, if we simply educate people about the benefits of vaccination – we will eventually arrive at community immunity, and then everyone will be safe. Except, education takes time – something that viruses have an incredible ability to take advantage of. And where does it say in the Bill of Rights that we have the right to expose each other to deadly pathogens? Do we allow students to form militias and take over school administrations, simply because it is mentioned in the Second Amendment?
SCOTUS precedent limited free speech in favor of public health
The Supreme Court has long held that there are limitations to the rights of individuals. In the 1905 Jacobson v. Massachusetts decision, the Supreme Court upheld a state requirement that everyone get vaccinated against smallpox on the basis that the rights of individuals may be restrained so long as they do not exceed what is necessary for public safety. In the 1944 Prince v. Massachusetts decision, a mother could not withhold her children from school in order to sell religious pamphlets on the basis that there are limits on religious freedom when dealing with matters of public health or the interests of a minor child. One of the most famous American axioms inspired by a Supreme Court ruling is the 1919 Oliver Wendell Holmes, Jr. paraphrased quote, “you can’t yell fire in a crowded theater,” laying a framework for limitations on free speech where public safety is imminently jeopardized.
The fight to get the bill passed and signed into law in 2019 was hard-won. Reticent colleagues had to be convinced that this legislation was important enough to put up with a seemingly tireless brigade of anti-vax crusaders clogging up their telephone lines, email inboxes, and the occasional protest event. Medical organizations that are more used to lobbying legislators for programmatic funding in the state budget worked double-time to lobby on behalf of this important public health legislation. Families told heart-breaking stories about cancer-surviving children who weren’t able to go to school with their friends because some of those children’s parents refused to vaccinate. Op-eds were written, press conferences and rallies were held, public support began to grow and the measles infection rate continued to rise.
It is likely the measles outbreak ultimately won the day for including science in state law. California passed their law largely in response to the 2014 Disneyland measles outbreak. Maine and Connecticut both passed laws eliminating non-medical exemptions amidst or shortly after the New York measles outbreak. It shouldn’t take a potentially deadly virus to motivate policymakers to support legislation that is in the interest of public health. Policymakers should want to keep their constituents (and their voters) healthy and safe.
Perhaps the fatal flaw of science is that it is innately noncommittal. The safety and effectiveness of vaccines is never absolute and is always couched in percentages and qualifying language. Vaccine misinformation, on the other hand, is almost always shared as if its gospel truth – no matter how anecdotal or inaccurate the claims are. A functioning representative democracy ought to be able to tell the difference and do what’s right for society.
Ned Klein is an employee of the New York State Assembly, however the above written piece was not reviewed or approved by, nor does it necessarily reflect the views of, his employer or of Works in Progress.