Public Health Law Map - Beta 5 - Medical and Public Health Law Site

unimmunized individuals’ being randomly distributed in the community. If
unimmunized persons cluster, then it is the percentage of immunization in the cluster
that determines the spread of the disease. This is frequently the case with religious
groups that refuse immunization. One hundred unimmunized persons in a large city
will not be a problem until they all meet at church.
The inherent uncertainty in herd immunity limits its use as an explicit disease control
strategy. A community must attempt to immunize every susceptible individual. Herd
immunity will then cover the small number of susceptible persons who are
inadvertently missed or who are not candidates for immunization. (Herd immunity is
the only realistic defense for many immunocompromised individuals.) A community
immunization plan must target the individuals who are weak links in a herd
immunity system. The largest group is the poor, especially the medically indigent.
These individuals are both less likely to be immunized and more susceptible to
infection.
2. Compulsory Immunization
The more difficult problem is religious or cultural groups that oppose immunizations.
These groups tend to cluster, reducing the effective immunization level in their
neighborhoods, schools, and churches. In addition to endangering their own children,
such groups pose a substantial risk to the larger community. By providing a reservoir
of infection, a cluster of unimmunized persons can defeat the general herd immunity
of a community. As these infected persons mix with members of the larger
community, they will expose those who are susceptible to contagion.
Many physicians, lawyers, and judges believe that the constitutional protection for
freedom of religion includes freedom from immunizations. This is not the law today,
nor has it ever been the law in the United States. The U.S. Supreme Court, in
Jacobson v. Massachusetts, [Jacobson] held that an individual could not refuse
smallpox vaccination: “We are not prepared to hold that a minority, residing or
remaining in any city or town where smallpox is prevalent, and enjoying the general
protection afforded by an organized local government, may thus defy the will of its
constituted authorities, acting in good faith for all, under the legislative sanction of
the State.” [Jacobson at p. 37.]
In the later case of Prince v. Massachusetts, [Prince v. Massachusetts, 321 U.S. 158
(1943)] the U.S. Supreme Court spoke directly to the issue of religious objections to
vaccination:
But the family itself is not beyond regulation in the public interest, as against
a claim of religious liberty. And neither rights of religion nor rights of
parenthood are beyond limitation. Acting to guard the general interest in
youth’s well being, the state as parens patriae may restrict the parent’s
control by requiring school attendance, regulating or prohibiting the child’s
labor and in many other ways. Its authority is not nullified merely because
the parent grounds his claim to control the child’s course of conduct on
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