The school my nieces attend in my hometown was closed for a few days last fall due to a whooping cough outbreak. My Facebook newsfeed was filled with angry posts debating whether the school’s high vaccination waiver rate played a role. Some argued that allowing waivers for children whose parents choose not to vaccinate them for philosophical reasons is irresponsible because it destroys herd immunity, leaving vulnerable children who are medically unable to be vaccinated. Others argued the vaccine’s effectiveness was questionable (both vaccinated and unvaccinated persons got sick) and that waivers were necessary to protect parents’ constitutional rights.
Several states have viewed recent outbreaks of communicable diseases as a call to action to reconsider exemptions from school vaccine requirements. According to the National Conference of State Legislatures, most states allow for religious belief exemptions; slightly less than half also permit personal belief exemptions (Michigan is one of these states). The Associated Press reported that as of February 2015, California, Maine, Minnesota, Oregon, Vermont, and Washington are considering legislation to eliminate, limit, or condition nonmedical exemptions. On the flip side, bills have been introduced in Montana and New York to broaden existing exemptions.
Although Michigan is not among the states currently considering legislative action, the Joint Committee on Administrative Rules approved a new rule for parents claiming nonmedical exemptions. Effective January 1, 2015, Michigan Department of Community Health R. 325.176(12) requires “[e]ach nonmedical exemption filed at the child’s school or group program . . . [to] be certified by the local health department that the individual received education on the risks of not receiving the vaccines being waived and the benefits of vaccination to the individual and the community.” Vaccine proponents may feel that this rule doesn’t go far enough. However, at least one study suggests that some parents opt to waive the vaccine requirements based on convenience and that vaccination rates are higher in states where the exemption procedure is more complex.
In the meantime, vaccine proponents may have another avenue to consider: tort liability. In the law journal article Compensating the Victims of Failure to Vaccinate, Dorit Rubinstein Reiss argues that negligence actions can and should be used to recover damages for individuals who contract a communicable disease from a child whose parents chose not to vaccinate him or her for nonmedical reasons. She lays out how an action could be brought despite challenges to establishing the elements. In Reiss’s view, such actions are worthwhile because they require parents to bear the cost of choosing not to vaccinate their children without compelling them to vaccinate. It will be interesting to see if any of these actions are brought in Michigan.