The United States is on the verge of a public health crisis. For decades, all 50 states
have required that parents vaccinate their children against various diseases, including
polio and measles, as a prerequisite to enrolling them in public schools [1]. While
virtually all states have tailored their immunization statutes to exempt those with
religious (and sometimes philosophical) objections to vaccines from these requirements
[2], widespread use of these exemptions threatens to undermine many of the benefits
of mandatory vaccinations, such as preserving “herd immunity” [3]. Since it is unlikely
that state governments will eliminate such exemptions outright, society must consider
other methods of providing incentives for vaccination and compensating those who have
suffered due to a disease outbreak caused by a community’s loss of herd immunity.
This essay will propose using tort law as a mechanism for prevention and victim compensation
while still preserving religious and philosophical exemptions to mandatory school
vaccinations. Part I will provide a short overview of mandatory school vaccinations
and the dangers posed by widespread use of religious and philosophical exemptions.
Part II will explore the potential role of tort law, with a particular emphasis on
private causes of action against specific individuals and the possibility of defendant
class action lawsuits. Part III will examine whether tort law is an appropriate remedy.
An Overview of Mandatory School Vaccinations
Why Mandatory Vaccinations?
States institute mandatory immunization requirements as a prerequisite to public school
enrollment because it is the most efficient method of perpetuating herd immunity.
Herd immunity is present in a community when such a high percentage of its members
have been immunized from a particular disease that the disease cannot gain a foothold
in the community [3]. Thus, achieving and maintaining herd immunity protects not only
those who have been vaccinated, but also those with compromised or weak immune systems,
such as the elderly, babies, and those afflicted with HIV [3,4,5].
But herd immunity does not just reduce levels of human suffering. Since achieving
herd immunity is an inherently preventive measure, mandating school vaccinations as
a method of perpetuating herd immunity is far less costly for governments, health
care providers, and the economy than treating victims of a disease after it has appeared
in a community. The preventable 1989-91 measles outbreak in the United States, for
example, created $100 million in direct medical costs alone [6]. Herd immunity, then,
is not only the most efficient method of preventing illness and human suffering, but
also the most cost effective.
Religious & Philosophical Exemptions to Mandatory Vaccinations
Although many organized religions, including Catholicism and Judaism, do not prohibit
vaccinations,
1
several smaller religious sects, most notably Christian Scientists and the Amish,
oppose vaccination on religious grounds [3]. Other individuals oppose vaccination
for other reasons, ranging from non-religious philosophical or moral beliefs, such
as a belief that vaccines interfere with “nature’s genetic blueprint” [8], to unspecified
“personal reasons.”
2
Religious and other exemptions to mandatory vaccination laws are not required by the
U.S. Constitution.
3
However, since 100 percent immunization rates are not needed to achieve herd immunity,
4
most state governments have chosen to exempt certain individuals from their mandatory
vaccination requirements, believing that communities can obtain herd immunity even
if such individuals do not become immunized. Most notably, 48 out of 50 states have
exempted those whose religious beliefs forbid vaccination [2]. Eighteen states also
have made the more controversial decision to exempt individuals who claim to possess
non-religious cultural or philosophical objections to vaccines,
5
which in some states are granted merely by checking one box on a simple form [9].
Such exemptions are not surprising, “[g]iven Americans’ deep respect for individual
freedom” and the fact that “absolutely mandatory immunization laws meet stiff resistance”
[13]. However, continuing recognition of such exemptions may not be sustainable in
the long run.
The Dangers of Religious and Philosophical Exemptions
In recent years, the core premise behind allowing religious and philosophical exemptions
— that communities can still achieve herd immunity even if such exemptions are granted
— has come under significant doubt.
Religious Communities as Disease “Hot Spots.”
Governments traditionally have considered “communities” in relatively broad terms,
viewing entire states — or sometimes even the whole nation — as a “community” for
herd immunity purposes [14]. However, recent experiences have demonstrated that actual
communities are far smaller. For instance, although nationwide measles vaccination
rates appeared high enough to ensure national herd immunity, disproportionately low
vaccination rates among blacks and Hispanics resulted in measles outbreaks in several
large urban areas, most notably Los Angeles [15].
Religious communities — particularly Christian Science, Amish, and Mennonite communities
— have been the source of many preventable disease outbreaks in recent years. Diseases
from polio [16] to measles [17] to rubella [18] have resurfaced with increasing frequency
in the United States due to herd immunity being lost in such religious ghettos. This
comes at a tremendous cost to society, for “vaccine-preventable diseases impose $10
billion worth of healthcare costs and over 30,000 otherwise avoidable deaths in America
each year” [19].
Religious and Philosophical Exemptions as Exemptions of Convenience.
However, those with genuine religious objections to vaccination do not represent the
entirety of the threat to society. Many individuals increasingly have taken such exemptions
not because of genuine beliefs, but because they are simply too lazy to vaccinate
their children. Since such parents “do not bear [the] negative externality costs or
harms” of losing herd immunity directly, they “may not take them into account in making
their decision not to be immunized” [20]. In fact, thousands of parents have joined
mail-order or sham religions, such as the “Congregation of Universal Wisdom,” so they
can qualify for religious exemptions and not have to go to the trouble of vaccinating
their children.
6
The situation is even worse in states where one can obtain an exemption for non-religious
“philosophical” reasons, with such states frequently having the highest vaccination
opt-out rates in the nation [22]. Admittedly, individuals may take advantage of philosophical
exemptions for a wide range of reasons, ranging from “devotion to ‘natural’ or alternative
healing” to “libertarian opposition to state power” to “mistrust of pharmaceutical
companies” to a “belief that vaccines are not as safe as experts claim” [23]. However,
there is little doubt that many parents use such exemptions out of mere convenience
rather than sincere belief — for instance, one recent empirical study has shown a
significant relationship between religious and philosophical exemption rates and the
level of “red tape” or governmental scrutiny used to get the exemption, with states
with very simple exemption processes having the highest exemption rates and states
with very complex procedures having the lowest [22]. The widespread and growing use
of religious and philosophical exemptions for convenience may, in the long run, jeopardize
herd immunity, not just in religious communities, but secular ones as well.
The Role of Tort Law
Although most scholars have recommended that state governments close the “legal loophole”
of religious and philosophical exemptions [23,24,25], this nation’s political landscape
makes outright eliminating these exemptions highly unrealistic.
7
Tort law, however, may allow state governments to retain religious, philosophical,
and other exemptions to mandatory vaccinations, while still providing both a deterrent
against religious exemptions of convenience and a mechanism for compensating victims.
What is Tort Law?
A “tort” is defined as a “civil ‘wrong’ — other than a breach of contract — that causes
injury, for which a victim can get a judicial remedy” [27]. This judicial remedy typically
entails “requiring the wrongdoer to pay compensatory monetary damages to the victim
sufficient to restore the victim to status quo ante — i.e., to the position the victim
would have occupied had the injury not been caused by the defendant’s wrong” [28].
Such damages typically will cover economic losses suffered by the victim — such as
medical bills and lost income — as well as non-economic losses, such as mental or
emotional distress [28]. Furthermore, in exceptionally egregious cases, courts also
may award punitive damages as a means of deterring such conduct [29].
Class Action Lawsuits
Perhaps one of the biggest obstacles to applying tort law to the mandatory vaccination
context is the inherent difficulty in assessing blame to any particular individual
for the community’s loss of herd immunity. Since herd immunity may perpetuate even
if 10 percent of a given community has not been vaccinated, it may be difficult —
if not impossible — to determine which specific individuals are to blame for causing
herd immunity to dissipate. Similarly, while the loss of herd immunity may cause significant
damage to society, those damages may be allocated over a large number of actors. While
certain institutions, such as hospitals, may have experienced damages high enough
to justify a lawsuit, many individuals may have suffered injuries that, while significant
to them, do not justify the cost of a lawsuit.
Class action lawsuits, however, may provide an effective mechanism for pursuing such
tort claims. Federal Rule of Civil Procedure 23 (“Rule 23”) allows members of a class
to “sue or be sued as representative parties on behalf of all” members of that class
[30]. Though each state sets forth its own rules of civil procedure and has its own
distinct requirements for class action lawsuits, many have chosen to adopt rules similar
to Rule 23 [31].
The Prerequisites to a Class Action Lawsuit.
Rule 23 sets forth four requirements that must be met for a class action lawsuit to
proceed: numerosity, commonality, typicality, and adequacy of representation [30].
All of these prerequisites are likely to be met in a hypothetical class action lawsuit
involving the loss of herd immunity.
Numerosity
While courts have not adopted any bright line rules to tell whether the numerosity
requirement has been met [32], courts generally have found the requirement satisfied
if a class contains at least 40 members [33]. Given the sheer number of individuals
who suffer as a result of the loss of herd immunity, plus the large number of people
who would need to use a religious or philosophical exemption in a given community
to cause herd immunity to fade away, numerosity probably would be a relatively easy
requirement to meet both for a defendant class and a plaintiff class.
Commonality
Commonality in a class action tort suit for failure to vaccinate one’s children through
use of a religious or philosophical exemption also would be strong. As the name implies,
the commonality element is fulfilled when there is a single issue common to all members
of a class [34]. Since all members of a plaintiff class would have suffered in some
way from a completely preventable disease emerging, and since all members of a defendant
class would have contributed to the loss of herd immunity that contributed to that
disease’s emergence in the community by using non-medical exemptions to avoid vaccinating
their children, many common issues of law and fact would be present.
Typicality and Adequacy of Representation
The typicality and adequacy of representation requirements are often related. For
a court to allow a class action to proceed, it must find that the arguments made by
the representative parties are typical — in other words, the arguments made by the
attorney representing a plaintiff class, as well as arguments made by an attorney
representing a defendant class, must be typical to those made by other members of
the class and not unique to the “named” party [35]. Similarly, the adequacy of representation
requirement is meant to ensure that there are no intra-class conflicts of interests
and the resulting trial would truly be fair — an example of the adequacy of representation
requirement not being met would be if a plaintiff deliberately sued a representative
defendant who has limited financial resources or a representative defendant who, for
whatever reason, has little or no stake in the outcome and, thus, has no incentive
to put on a vigorous defense on behalf of the entire class [36]. Both of these requirements,
however, should not be difficult to meet.
Rule 23(b) Categories.
A class action lawsuit must not only meet the Rule 23(a) prerequisites, but also fall
into one of three categories described in Rule 23(b) [37]. Fulfilling one of the Rule
23(b) categories likely would pose the greatest obstacle to a religious exemption
lawsuit. Two of these categories — those defined in Rule 23(b)(2) and (b)(3) — are
clearly inapplicable in this context, for 23(b)(2) does not apply to defendant class
actions and 23(b)(3) “must allow class members to ‘opt-out’ of the litigation,” which,
when applied to a defendant class, would almost certainly result in virtually all
defendants opting out [38].
Rule 23(b)(1)(B) allows the maintenance of a class action when “the prosecution of
separate actions by or against individual members of the class would create a risk
of adjudications with respect to individual members of the class which would as a
practical matter be dispositive of the interests of the other members not parties
to the adjudication or substantially impair or impede their ability to protect their
interests” [39]. Courts, however, often have interpreted this rule very narrowly,
finding that certification under this rule requires that a “precedent plus” standard
be met, a standard “which requires precedential effect plus some other factor in order
to justify certification” [40]. Though meeting this standard would be very difficult,
it is not impossible. One court, for instance, found that multi-forum patent infringement
lawsuits may meet this standard because the “inherent difficulty of the subject matter
… and the expense involved” may cause subsequent courts to “accord great weight” to
the first court’s decision, which would “impede the ability of the nonparty class
members to protect their interests” [41]. One may argue that many of the complex scientific
issues regarding the loss of herd immunity may justify certification.
8
The HPV Vaccine and Lawsuits against Specific Individuals
Since an extremely large number of individuals suffer damages resulting from and contribute
to the loss of herd immunity, most potential lawsuits seeking to recover monetary
damages from individuals who used religious and philosophical exemptions as an excuse
to not vaccinate their children would have to be class actions. However, the unique
nature of the HPV vaccine may allow for specific individuals to file suit against
other specific individuals for damages resulting from a refusal to vaccinate children.
The recently developed and licensed HPV vaccine, though primarily developed to prevent
cervical cancer, has ignited a significant amount of controversy since it also has
the ability to prevent genital warts that are also caused by HPV [42]. While many
medical professionals and social activists believe that this vaccine is an important
public health tool and mandating it as a prerequisite for starting high school would
greatly reduce the number of cervical cancer victims,
9
several prominent social conservative advocacy groups, such as Focus on the Family
and the Family Research Council, believe that mandating a “genital warts vaccine”
would both undermine abstinence messages and force children to “undergo an intervention
that may be irreconcilable with [their] family’s religious values and beliefs” [42].
Despite such protests, the Michigan state senate has already passed a bill that would
mandate the HPV vaccine for girls [43], though families would still have the opportunity
to use Michigan’s vaccine exemption statute to opt-out of the vaccine — a statute
that allows for both religious and philosophical exemptions [43].
Religious, cultural, and philosophical opposition to the HPV vaccine is thus distinct
from opposition to other vaccines. Though genuine opposition to mandatory vaccination
for diseases such as polio is primarily rooted in religious objections to the act
of vaccination, most opposition to the HPV vaccine stems not from the actual act,
but from a fear of the message the vaccination sends to children who are on the verge
of becoming physically capable of sexual activity.
10
Given that such opposition comes from groups traditionally not opposed to vaccination,
it is possible that in many areas, the HPV vaccine, even if mandated, will never result
in herd immunity being achieved at all in a large number of communities.
11
The HPV vaccine situation, however, is also unique in that affliction with the diseases
the vaccine is intended to prevent potentially can be traced back to specific individuals.
HPV — including the strains of HPV that cause genital warts and cervical cancer —
is primarily spread through sexual contact. Boys, though sometimes not showing symptoms
themselves, may become infected with an HPV strain and transmit it during sexual activity
to a girl, who may then develop genital warts or even cervical cancer [23]. Although
the Food and Drug Administration has not yet approved the HPV vaccine for boys, such
approval is expected eventually, and once granted, it is likely that activists would
lobby states to require the vaccine for both girls and boys [23]. Given that boys
may act as carriers of HPV, one can easily envision parents of girls (or girls themselves)
— particularly those from districts or states that do not mandate the HPV vaccine
— filing lawsuits against specific boys (and their parents) who should have been immunized
from HPV due to a state mandate but used a religious or philosophical exemption to
avoid vaccination.
One serious obstacle to such lawsuits involves the consent defense to the tort of
battery. Courts, when faced with lawsuits involving a plaintiff suing a defendant
for infecting her with a sexually transmitted disease, generally have held that the
plaintiff, by consenting to sexual intercourse, also has consented to the possibility
of receiving a sexually transmitted disease, unless the plaintiff can prove the defendant
misrepresented himself, such as by claiming he is disease free [45]. Such cases, however,
were decided prior to the HPV vaccine’s development, and certainly before any jurisdictions
contemplated mandating such a vaccine as a prerequisite to high school enrollment.
Courts, when faced with a lawsuit involving this new set of facts, may find that a
plaintiff, knowing that the state has mandated the HPV vaccine, had reason to believe
the defendant male also was vaccinated, and, thus, the defendant male and/or the defendant
parents should be found liable for not obtaining a vaccination and not informing the
plaintiff about the lack of immunity, regardless of whether the defendant actually
knew he was an HPV carrier.
Is Tort Law a Desirable Remedy?
Although some may question whether tort law is the appropriate remedy for this problem,
one must acknowledge that allowing such causes of action would be consistent with
the primary purposes of tort law. The specter of tort liability provides a strong
deterrent to engaging in risky behavior that may have a negative impact on other members
of society [46]. Just as the defamation torts deter newspapers and other media from
recklessly publishing lies about individuals and products liability doctrine deters
manufacturers from developing and selling unsafe products, finding individuals liable
for using religious and philosophical exemptions to vaccinating their children would
deter many parents, particularly those who use such exemptions merely for convenience
and not due to a sincere religious objection, from the risky practice of not immunizing
their children — a very desirable outcome, given the benefits of herd immunity and
the high costs of treating otherwise preventable diseases.
Perhaps more importantly, assessing such liability is consistent with tort law’s overarching
goal of “assign[ing] responsibility for injuries that arise in social interaction”
and “provid[ing] recompense for victims with meritorious claims” [46]. While states
can easily justify respecting genuine religious objections to vaccination, it is far
more difficult to justify not allowing those who have suffered tangible harm from
those religious objectors to receive compensation for their very real injuries. Though
some may feel uncomfortable with the practice of allowing individuals to be successfully
sued for practicing their genuine religious beliefs, one must remember that this is
not a new concept, for courts already have found that practicing one’s religious beliefs
in certain situations may work against an individual in a tort suit, for individuals
make a conscious choice to assume the “specific risk” inherent in following their
religion’s tenets [47].
12
Concluding Remarks
Over the past three years, state governments have taken substantial steps toward promoting
herd immunity by placing new mandates upon parents, ranging from requiring additional
vaccines to making vaccines prerequisites for an even larger number of activities
and benefits. Most recently, New Jersey became the first state in the nation to require
flu shots as a prerequisite to preschool or day care attendance [49]. Yet, during
this same period, state governments increasingly have bowed to pressure from social
conservatives to create broad-based exceptions that undermine the purpose behind mandatory
vaccination.
13
For instance, despite the known problems with statutes authorizing philosophical exemptions,
the number of states with these exemptions is more likely to increase than decrease,
with the New York legislature currently considering a bill that would make New York
the 19th state to allow exemptions for philosophical reasons [51].
Tort law, though perhaps not as effective a remedy as outright state government intervention,
has the potential to be the best method of preventing religious and philosophical
exemption abuse and compensating victims of vaccine-preventable disease outbreaks
that has a realistic chance of being implemented. Class action lawsuits, and perhaps
lawsuits against specific individuals, would more closely align the interests of those
considering religious and philosophical exemptions with those of the rest of the society,
thus reducing the number of exemptions of convenience. Such lawsuits also would provide
a mechanism for those who do take such exemptions to the detriment of others to compensate
such individuals for the harm they have suffered, resulting in a more equitable distribution
of costs than today.