As six outbreaks of measles raged in different parts of the country, Food and Drug Administration Commissioner Scott Gottlieb recently told reporters that the failure of some states to narrow vaccine exemptions was “going to force the hand of the federal health agencies.” Without offering many details, Gottlieb added that the federal government “could mandate certain rules about what is and isn’t permissible when it comes to allowing people to have exemptions.”

As someone who has researched and written about public health law, including vaccine mandates, for more than 30 years, I appreciate the sentiments behind Gottlieb’s comments. Vaccines have saved innumerable lives, and have led to the eradication or near eradication of once common scourges, such as smallpox and polio. Vaccine mandates have helped ensure that success by keeping vaccination rates high.

Religious and personal belief exemptions to vaccine laws have done the opposite. They are associated with decreased vaccination rates and increases in vaccine-preventable diseases.

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With the number of measles cases rising, especially among unvaccinated children, it makes sense for states to narrow their exemptions, as a bill before the Washington state legislature would do, and as California did in 2015 following a measles outbreak linked to Disneyland. But that doesn’t mean federal health agencies should act as Gottlieb suggests. Doing so would likely violate the law. It could also worsen the problem of vaccination resistance.

First, the law. There is no question that states can require all children (except perhaps those with medical contraindications) to be vaccinated before entering school or day care. In 1905, in Jacobson v. Massachusetts, the U.S. Supreme Court upheld a Massachusetts law that compelled all individuals to be vaccinated against smallpox. In Zucht v. King, the court in 1922 relied on Jacobson to affirm a Texas law mandating vaccination for schoolchildren. Neither the Jacobson nor Zucht cases dealt with claims of religious liberty, since the court had not yet applied the First Amendment right of free exercise against the states, but in a 1944 in a case concerning child labor, the court proclaimed that religious freedom “does not include liberty to expose the community or the child to communicable disease.”

Courts today continue to uphold vaccine mandates, and rule that neither the religious exemptions that 47 states have nor the philosophical exemptions that exist in 17 states are constitutionally required. Paradoxically, state mandates have run afoul of the Constitution only when they contain religious, but not secular, exemptions, or when the religious exemptions favor one faith over another.

That the states are on firm constitutional ground in repealing personal belief or religious exemptions doesn’t mean the federal government can abolish such exemptions. In its 2012 ruling on the Affordable Care Act’s individual mandate, the U.S. Supreme Court said that the federal government’s authority over interstate commerce does not permit it to compel individual action. If Congress can’t require individuals to have health insurance, or eat broccoli, it can’t mandate vaccination either.

Perhaps Gottlieb was suggesting that the federal government could require the states to abolish religious or personal belief exemptions. That would also face significant constitutional problems. Under the 10th Amendment’s anti-commandeering doctrine, the federal government cannot force states to pass laws to its pleasing.

Congress could use its power of the purse to buy state compliance, perhaps by requiring states to get rid of philosophical and religious exemptions in order to receive federal public health funds. But any such conditional spending laws must give states a clear choice and can’t be coercive.

In addition, federal health agencies can’t act without congressional authority. Under current law, the FDA licenses vaccines. But it cannot regulate the practice of medicine, and it has no authority to mandate that individuals be vaccinated. Nor does the FDA have statutory authority to require states to enact specific vaccine laws. The CDC’s Advisory Committee on Immunization Practices (ACIP) is charged with making recommendations about vaccinations, but these are meant to advise, not dictate, state laws.

Nor should Congress give such authority to any federal health agency. Although mandates can save lives, they can also stoke backlashes. Conspiracy theorists already allege a nefarious relationship between vaccine makers and the federal government. These conspiracies have gained traction in part due to the fact that under the National Childhood Vaccine Injury Act, the federal government acts as the defendant in vaccine litigation. Federal mandates could enhance the perception of a conflict of interest, leading more parents to distrust federal officials and question vaccine safety.

The litigation that would almost certainly follow a federal mandate would add to the problem, providing anti-vaxxers with a new forum in which to question vaccine safety as well as the integrity of the federal regulatory process.

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As we have seen in California and Washington, infectious disease outbreaks can lead parents and health professionals to work with their state legislatures to narrow or abolish vaccine exemptions. This democratic process, which can occur more organically in the states, helps debunk anti-vaccination misinformation and educates the public about the value and safety of vaccines, as well as the utility of strong state mandates. This process can also provide mandates with the political support and democratic legitimacy they need to succeed.

With measles cases on the rise, it’s no surprise that health officials want to shortcut the often slow and frequently unpredictable democratic process and instead take swift action to reduce exemptions — and increase vaccination rates. Unfortunately, there is no vaccine against vaccine resistance, and constitutionally dubious actions by federal officials can’t do the trick. But by working to improve public education around vaccines, enhancing transparency, educating and paying health professionals to talk to parents about vaccines, and ensuring vaccine safety, federal officials can help bolster trust in vaccines. Those efforts, more than anything, may lead to fewer exemptions.

Wendy E. Parmet, J.D., is professor of law and director of the Center for Health Policy and Law at Northeastern University School of Law and professor of public policy and urban affairs at Northeastern’s School of Public Policy and Urban Affairs.

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  • Is it true that the bill proposes to attach licensing, i.e. car, professional, etc to force people to adhere to this policy? Thank you..

  • Correction: the discontinued use of ddt in American agriculture curbed the spread of poliomyelitis. How can we know? Look at Nations that still use DDT and you still find poliomyelitis to be alive and well. Want more proof? Look at the timeline. Polio went away with the 1956 outlaw of DDT. Polio declines in kind. And smallpox all but vanishes as soon as modern sanitation takes root in the average household. Vaccines may help some, that’s viable. But they didn’t erradicate anything.

    • Yes! Also, polio was reclassified in the 1950’s into a few different things. One of them is Guillain Barre. They were even diagnosing muscle weakness from the influenza as polio.

  • Genetic and teter testing would cut down on vax injuries because you would know of greater risks if there are conditions before you vax…therefore cutting down on lawsuits….if vax is mandated so should testing be….but the bottom line is the government needs to mind it’s own business

  • Why does no article ever link to the bill in question. There’s no point in an article that doesn’t cite the actual bill. Can we please read it for ourselves?

    • There is no bill yet. They have submitted House Resolution 179 that is full of total falsehoods. Those of us against mandating medically invasive procedures are requesting that our representatives vote NO on it, but this is all just preliminary. The federal government doesn’t actually have the power to make health mandates like this, that’s usually left to the states. But they could do it anyway. It would likely get smacked down by the Supreme Court eventually but it’s hard to say for sure. They could change the Constitution or just ignore it. Corruption runs deep. Here’s a link to the resolution: https://www.congress.gov/bill/116th-congress/house-resolution/179/text?r=1&fbclid=IwAR0MhaaxkY9HqYswNpu6yRtv2yXpdYEcSsuy-oLtFcjNcjaqeE3L0rJ7nAo

    • At the time that this article was written, the hearings had not yet taken place and the resolution was not yet submitted. The hearings were astoundingly biased and they blocked everyone that supported anything that they didn’t want to hear. They told Robert Kennedy Jr. that there was no room on the docket for him and then invited that 18 year old kid that knows nothing to speak. Their agenda is already decided and paid for.

    • That Bill is the bst thing that Gottlieb did while in office. It might be wy he is leaving, since the adminitration is clearly anti scince. Scientists and public health officials have been udner attack by anti vaxx trolls, and the people who profit form misinformation. It is like a multi level marketing program online. The FTC needs to get involved and ban deceptive marketing.

    • The only people profiting from misinformation are the pharmaceutical companies and their bought legislator and doctor lackeys. Those of us that have actually looked at the research benefit not at all from speaking up, other than having the piece of mind that a child might be saved from death or damage. It’s absurd to claim that the conflict of interest is with those for medical freedom when the safety studies that were used to license vaccines had no true placebos and were funded by those that profit from their findings.

    • It looks like a lot of people have been had. I blame Oprah and Doctor Ox for peddling and normalizing psuedo scince. Our FTC needs to crack down on decepptive advertising that is rampant online. It seemd harmles swhn they were pedddling Goop or Accupuncture, only because the deaths and adverse events are not counted. Now they are pedding misninformation that could lead to the deaths of children, in our “Healthcare is a Marketplace” Ideology ‘ someone made money a lot of money. Big Pharma makes more moneyif you don’t vaccinate, they could care less.

      https://foreignpolicy.com/2019/03/06/the-worlds-many-measles-conspiracies-are-all-the-same/

    • They would need to crack down on peer reviewed scientific studies that are not funded by the pharmaceutical companies in order to stop this movement. I don’t know anyone that gets their information from celebrities. That’s just nonsensical propaganda. We read studies. Did you know that the study used to license the hepatitis vaccine that is given to babies on the day they are born only followed the recipients for 5 days? And that subsequent studies have shown that the neurological effects of that vaccine do not become apparent until days 35-42? Scientists in China did a true placebo study and found conclusive evidence, not only that hep b vaccine causes brain damage consistent with Autism, but also the mechanism by which it occurs after injection. Science in no way supports the mantra that vaccines are safe and effective. Anyone that claims such has not read the actual studies. Even our Supreme Court classifies them as “unavoidably unsafe.”

    • Kari I wholeheartedly agreewith you about the industry funded studies. they are a big part of the problem and have undermined the public faith in science. I am well aware of how they distort scince, and manipualte studies to get the resutls they want. However the measles Vaccine is much safer than the alternative, which is measles.

      One in four kids who get measles in the US will need hospitlization, and 2 out of a thousand will die. Sure th eindustry is corrupt, but vaccines are safer than the alternative. A lot of you deniers have never seen the results, or lost anyone to these diseases which have nearly dissapeared due to vaccines.

      The Russians are promoting this anti vaxx nonsense too, just like they peddled a white supremacist to the white house.

    • Mavis, those statistics might be true of developing countries where malnutrition and lack of sanitation play a huge part in its severity, but that’s not true here in the US. Please look at the CDC statistics for the US prior to the introduction of the vaccine. Back then nearly everyone under the age of 15 got the measles, roughly 3 to 4 million people every year. Only 450-500 people died annually. That’s a 99.99% survival rate. The measles are not deadly here and weren’t before the vaccine was developed. I truly believe that we make our immune systems stronger by allowing them to developed naturally. There is also evidence surfacing that actually having the measles and the chicken pox help protect against a number of cancers.

    • Here’s a link to the CDC statistics, if you scroll to page 4 it shows the number of cases per year and deaths as well as hospitalizations. Last year there were nearly 50,000 deaths and injuries reported to VAERS and the CDC estimates that they represent about 10% of actual cases (I’ve heard statistics as low as 1% but let’s give them the benefit of the doubt). So I still feel that our vaccines are worse than the illnesses. All I want is medical autonomy over my body and that of my children. If you think the benefits outweigh the risks, then you should do what you feel is right. I don’t believe that they do. There are very real risks with all vaccines and where there is danger of death and injury, there should be choice.

      https://www.cdc.gov/measles/downloads/measlesdataandstatsslideset.pdf

  • Now the Anti Vaccers are peddling Vitamin A to cure Measles, on this site. They apparently can’t read very well, or they have been lied to by another quack. Children in impoverished countries often have vitamin A deficiencies, and supplementing vitamin A helps them Survive measles. The Anti Vaccers on here took this to mean that vitamn A is a cure. This kind of alternate fact nonsense could lead to the deaths of children.

    https://www.mayoclinic.org/drugs-supplements-vitamin-a/art-20365945

    Dr Mercola is a Quack!
    https://www.alternet.org/2014/07/four-biggest-quacks-plaguing-america-their-bad-claims-about-science/

    • Wow. Way to totally twist my words. I said that malnutrition plays a huge part in its severity in undeveloped countries and that vitamin A drastically reduces the symptoms and severity. All of which is true with numerous studies to back it up. We don’t need a cure for the measles. It’s a completely benign illness that the body can fight off and develop lifetime immunity unless you’re vitamin A deficient. I take it you still didn’t bother to look at the CDC statistics.

  • Much ado about nothing. The measles vaccine coverage, the year (2000) measles was declared eliminated in the US, was 90.5%. That year there were 86 cases. The current vaccine coverage is 91.5%. When I was a child there were 3 – 4 million cases of measles every year. No nightly news stories. Falling out of bed kills more people than measles did in 1963. A little perspective is in order.

  • “As six outbreaks of measles raged across the country…” 😂🤣😅 Here….Let me help you with the wording: How about ‘The handful of measles across is as expected and similar to previous years’….or ‘Even though nobody in the USA has died of the measles in a very long time….’

    In your 30 years of writing about public health policy, one would think you would at least take the time to deeply research the real history (not the propagandized version) of the vaccine program. It’s been using coercion since it’s inception and their has been an antivaccination league in place since the late 1800’s. In Leicester, England, parents preferred to go to prison instead of vaccinate their children. And since you’re old enough to have written about health policy for over 30 years, I’m assuming you just might be a “MEASLES SURVIVOR” or are at least old enough to know that no one gave a monkey’s bottom about measles until just recently. Parents who are awake to your lies will NEVER vaccinated their children.

    • That is the only death in decades and she was a fully vaccinated adult with a compromised immune system (gee I wonder why it was compromised). Not true about vaccinations decreasing deaths. Check the CDC statistics. The measles had a 99.99% survival rate in the US prior to the introduction of the vaccine. The only way they can make the measles look scarier than the vaccine is to include developing country statistics that lack sanitation and good nutrition. The measles aren’t deadly, not even close. Malnutrition is, especially in conjunction with the measles. Vitamin A drastically reduces the severity and duration of the measles.

    • @Kara: I was reading the testimony of one of the doctors at the senate hearing yesterday and he said there wasn’t anything you could do about measles. I know there is no known cure, but vitamin A has been proven to work at minimizing symptoms and duration. Now if only that could be used to make some kind of cure…..

    • That’s funny that you saw that, too. That was the only part that I actually watched. I got too angry to watch any more because I knew it was going to be littered with lies just like that. As soon as he said that, I shut my computer and told my hubby what he said. What’s sad is that we are constantly told how unethical it would be to do a true placebo study on vaccines (that should have been done long before they were ever licensed) because of how horribly it would be to deny the control group of life saving vaccines. Yet they had no trouble doing a true placebo study in Africa to test whether or not vitamin A effectively treats the measles (big shocker, it does, we already knew that) and denying DYING CHILDREN that were in the control group life saving vitamin A.

  • These states are actively endorsing Anti Vaxx ideas. They alllow varios alternative pracioners to market the Anti Vaxx, ideology, because it is profitable. There is no agency anywhere tracking the marketing, adverse outcomes, and misinformation that is intergral to peddling alternative medicine. No one is looking the marijuana industry wellness marketing either.

    There are outright lies in pharma marketing too. We are experincing Post Fact America, anything goes, and science is now debatable. Vaxxines saved millions of lives, more than all of the other pharma products combined.

  • Measles cases are not in the rise. In 2014 there were 667 cases of measles, last year there were nearly half that. That is six hundred and sixty seven at its highest 5 years ago and as low as 86 cases in 2016… measles is very contagious yes, but. If you look up the symptoms the person with the infection should get plenty of rest, and drink liquids. It’s not as life threatening of a disease as the media makes it out to be. The body gets rid of it and then the host has a lifetime immunity! No boosters!

    • Right? I’m not sure which is crazier: that they’ve decided to use something as benign as the measles to stoke fear or the fact that people actually believe this hogwash. Half the country is old enough to remember a time when everyone got it and no one feared it. It had a 99.99% survival rate prior to the introduction of the vaccine in developed countries. I can’t even believe the number of epidemics that are being ignored while a national emergency is being declared over a handful of people getting a week-long rash that responds fabulously to vitamin A.

    • Each and every one of those cases has the potential to spread to thousands, kill people with suppressed immune systems, and infect infants. Thanks to modern medicine, and the fact that a lot of people are innoculated, there has not been a major outbreak.

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