Stanford’s Michael Wald on Vaccinations, Children’s Rights, And The Law


Publish Date:
February 13, 2018
SLS - Legal Aggregate
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The measles outbreak in the U.S. continues to grow, with more than 100 cases reported across the country—most involving young children who have not been immunized. In an earlier Q&A we discussed the health law implications of this outbreak with Professor Michelle Mello. Here Stanford Law Professor Michael Wald, an expert on legal policy related to children, discusses the legal rights of children to receive vaccinations and how the law varies from state to state.

What authority do states have to require that children receive vaccinations?

States clearly have the authority to require that all children receive vaccinations. Vaccinations serve two purposes. One is to protect the health of the child, the other to protect the health of the general public. As early as 1905, the U.S. Supreme Court ruled that parents do not have a constitutional right not to vaccinate their children, regardless of the reason, since these laws are justified in order to protect the general public health. Under most state laws, failure to provide vaccinations might also be considered “medical neglect” if the vaccination is needed to protect the child from serious physical harm.

All states have mandatory vaccination laws. These are generally enforced through making vaccinations a requirement for school enrollment, including preschool and day care. Enforcement through child welfare laws is not very common, since child protection laws generally require the threat of serious harm to the child, which may be hard to establish.

Can you talk about how and why vaccination regulations for children attending school vary from state to state, with religious and other exemptions? Why isn’t this handled at the federal level?

Virtually all states provide religious exemptions to mandatory vaccination laws; many also provide a “philosophical” exemption. While the federal government might be able to require universal vaccination for the protection of the general public, issues related to the protection of public health and to child protection generally have been seen as the province of the states and best regulated at the state level. There are some federal guidelines regarding what constitutes the provision of adequate medical care for purposes of child maltreatment laws; the federal government makes adherence to these guidelines a condition for receiving federal grants, but the federal government has not established direct regulatory power.

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