Public health agencies and citizens should employ legal approaches to hold parents accountable for refusing to vaccinate their children. The judiciary would craft an effective response to defeat the threat posed by these parents. Public-nuisance law may offer a legal mechanism to hold vaccine objectors liable for their actions.
Questions about the societal costs of personal belief exemptions highlight simmering tensions that have long surrounded compulsory vaccination. The debate usually occurs between families who reject one or more vaccines and state administrators who seek to implement vaccination policy goals.
Increasingly, parents use personal belief exemptions to excuse their children from school-entry immunization requirements. These parents believe that their refusal (1) serves their children's best interests, and (2) affects only their family. However, unvaccinated children experience an increased risk of developing vaccine-preventable illnesses, and needlessly expose the larger community to disease.
Another perspective demands consideration. Families who are unable to vaccinate their children and those who support broad vaccination programs question whether the ability to refuse immunization infringes on their right, as members of the public, to be free from unnecessary exposure to vaccine-preventable disease. These parents recognize that while exemptors have a right not to vaccinate their children, they do not have a right to risk the health of others. Postings on internet forums, suggest that many parents propose measures that would prohibit exemptors from accessing schools, roads, sidewalks, or other public services. Others propose that parents of children who cannot be vaccinated should sue exemptors if their children spread vaccine-preventable disease.
The opponents of personal belief exemptions may demand that courts recognize their interests. Accordingly, private citizens and state governments should be able to use tort law to ensure that all members of the public have safe environments that conform to national public health standards.
Vaccines save more lives than any surgical technique or medication, including antibiotics. Global vaccination has eradicated smallpox and drastically reduced the incidence of diphtheria, polio, congenital rubella syndrome, and influenza type b. Because of their unparalleled success, vaccines are universally heralded as one of the greatest achievements of public health.
Population-wide vaccination has long been an accepted strategy to protect communities from vaccine-preventable disease. For over 100 years, the basic tenets of immunization policy and law have supported the goal of public protection, even in the face of individual objections. Courts have upheld state laws that require vaccinations, while carefully weighing parents' rights to make medical decisions for their children against the public's well-being, and personal beliefs regarding vaccines against the accepted standard of care.
In 1905, in Jacobson v. Massachusetts, the Supreme Court recognized that compulsory vaccination laws are an appropriate exercise of state authority. The Court noted that states may develop and implement policies to "protect the public health and safety." Two decades later in Zucht v. King, the Court upheld vaccination laws in the context of school attendance. In so holding, the Court found that Texas was not exercising "arbitrary power, but only that broad discretion required for the protection of the public health."
Today, despite dozens of court challenges, all states have developed school-entry vaccination requirements. These laws have proven to be the most effective techniques ever implemented to ensure that all children receive appropriate and timely vaccinations. More than ninety-five percent of all school-age children comply with the requirements, and the incidence of vaccine-preventable disease has declined to historic lows.
School-entry vaccination requirements permit parents to refuse immunizations for their children by granting exemptions, or opt-outs: all states issue exemptions for medical reasons, most states allow parents to refuse vaccination based on a religious belief, and eighteen states permit exemptions based on a parent's personal, moral, or philosophical belief. In Childhood Vaccine and School Entry Laws: The Case of HPV Vaccine, I identify the two jurisdictions that have adopted school-entry requirements for the human papillomavirus ("HPV") vaccine. These statutes have expanded personal belief exemptions even further, allowing parents to refuse vaccination without offering any reason, as long as they have reviewed educational materials that describe the connection between HPV infection and cervical cancer.
In the past decade, personal belief exemptions have increased from one percent to approximately three percent nationally, with clusters where exemption rates are several times higher than the national average developing in specific areas. This trend is troubling-even a small increase in the use of exemptions translates to a higher percentage of unvaccinated individuals, which threatens "herd immunity." Herd immunity is the defense against disease that develops in an entire community when sufficient numbers of people have been vaccinated. Lower herd immunity exposes vulnerable children and the larger community to dangerous diseases.
Consequently, recent outbreaks of vaccine-preventable disease throughout the country have been directly attributed to the use of personal belief exemptions. For example, according to the Centers for Disease Control and Prevention, cases of measles have reached a ten-year high; with over half of the cases involving children whose parents refused to immunize their children. Others who developed measles during these outbreaks include those who were too young to receive vaccines.
These outbreaks may presage difficult times ahead if individual interests defeat community interests. There is a strong public health argument in favor of strengthening existing measures to obtain the highest vaccination coverage rates to ensure community protection. It is possible for communities to confront personal belief exemptors-if they have the collective will.
II. Defining Public-Nuisance Torts
A tort is a private or civil injury that results from a breach of society's expectation regarding interpersonal conduct. People who have been injured by a tort may file a claim, and the accused may be required to pay damages to the injured party. Torts are distinguishable from criminal acts because crimes are prosecuted solely by the government and may be punishable by imprisonment or the imposition of a monetary fine. As Larry Gostin notes in Public Health Law: Power, Duty, Restraint, "tort litigation can be an effective tool to reduce the burden of injury and disease."
"Public nuisance" is a category of tort that arises when particular conduct interferes with the health, safety, or welfare of the general community. The Restatement (Second) of Torts section 821B defines public nuisance extremely broadly, as conduct that constitutes "an unreasonable interference with a right common to the general public." The conduct "involves a significant interference with the public health, the public safety . . . or . . . is of a continuing nature or has produced a permanent or long-lasting effect and, to the actor's knowledge, has a substantial detrimental effect on the public right."
The case State of Rhode Island v. Lead Industries Association, Inc. defined a public right as "an indivisible resource shared by the public at large, like air, water, or public rights of way." Similarly, the Restatement defines a public right "as one common to all members of the general public. It is collective in nature and not like the individual right that everyone has not to be assaulted."
In describing public-nuisance litigation, Gostin indicates that state legislatures may delegate to public health agencies the power "to define, prevent, and abate nuisances." Agency definitions of public nuisance are extremely expansive and include "anything which is injurious to health. . . so as to interfere with the comfortable enjoyment of life or property."
Further, legislatures or agencies may label specific conditions public nuisances. Courts are willing to accept that the definitions developed by legislatures and administrative agencies are constitutional; however, they reserve the right to conduct their own review in order to determine whether a nuisance exists.
Upon a judicial finding that a public nuisance is present, courts have wide latitude to devise equitable remedies: 1) award damages to the injured parties; 2) require the destruction of dangerous property; or 3) issue an order of abatement. The order of abatement is appropriate as long as it is reasonably necessary to avert a health threat, even if it is a derogation of a pre-existing private property right. A government body implements all of the decisions on behalf of the public.
Additionally, section 821C of the Restatement outlines the three categories of plaintiffs who may file a public-nuisance claim:
1. A public health agency may file suit to prevent conduct that is harmful to the public.
2. An individual may file a claim if s/he can show that the conduct constitutes a substantial interference with a right common to the public, and that the individual has suffered harm different in type or quality from that suffered by other members of the public.
3. The class representatives of a class action or anyone with standing to bring a citizen suit under state or federal law.
Finally, plaintiffs may file a public-nuisance claim before the harm occurs. Courts will often act preemptively in these prospective-nuisance cases, and may grant an injunction or order of abatement to prevent future harm where the risk of harm is substantial and imminent.
III. Public-Nuisance Torts and Immunization Exemptors
Public-nuisance claims could be a valuable tool allowing courts to consider whether exemptors who exercise personal beliefs have violated the public's right to live in a reasonably disease-free environment. Public-nuisance claims may be appropriate, even in those states that permit personal belief exemptions. The legal right to opt out of school-entry immunization requirements should not be construed as a right to create an unreasonable public health threat. The parameters of public-nuisance law are expansive enough to abrogate the right to opt out, in order to serve the public good.
Attorneys representing state departments of health could file prospective public-nuisance claims against exemptors. Using this category of public-nuisance claim would permit the state to move forward without being required to wait for an outbreak of vaccine-preventable disease in their immediate community before bringing suit.
The state could argue that exemptors present an unreasonable interference with the public health, and that they pose a substantial risk of having a future detrimental effect on the public's right to enjoy the community and to be free from an unnecessary threat of vaccine-preventable disease.
Courts may agree that a defendant's conduct contributes to the risk of disease outbreaks that would cause permanent or long-lasting effects on the public. The judiciary might be especially receptive to a prospective public-nuisance claim if (1) the state could show that the jurisdiction had greater numbers of exemptors than the national average, or (2) that the community had experienced past outbreaks of vaccine-preventable disease that were traceable to the use of personal belief exemptions. If these claims prove successful, the court could issue an order of abatement, requiring the exemptor to discontinue the unsafe conduct of vaccination refusal.
The public-nuisance litigation suggested here would be a case of first impression in every jurisdiction and would likely be highly controversial. Defendant exemptors would protest loud and long; courts would hear all about their children, their autonomy, their rights, and their fears.
But the question remains, "What about the rest of us?" Tort plaintiffs will be left to defend the role of community-wide immunization and the school-entry requirements that protect the public's health, and to explain the danger we face if herd immunity fails. If courts review these facts, they will rely on foundational principles of law and policy that have always been used to protect the many against the hazards created by the few.