The Great Vaccine Panic: Should The Law Get Involved?

By Talia Parker

New Zealand does not legally enforce any vaccines. This year alone, New Zealand has already seen a measles outbreakand a spike in whooping cough. Both these diseases are dangerous and incredibly contagious. Vaccines are extremely effectivein preventing infectious diseases. Suggestions to the contrary are not backed by credible evidence, so will not be debated in this article. What is worthwhile to discuss is how we can increase vaccination rates so that our population is protected. One option is to make at least some vaccines legally mandatory. Given that ‘vaccine hesitancy’ was listed as a global health threatthis year, every country needs to very seriously consider what we can do to increase vaccination rates.

A huge part of why some parents are reluctant to vaccinate is because of online fear-mongeringand science scepticism. If a well-meaning parent googles ‘vaccines’ to find out more information, they will find article upon article full of falsities. This misinformation is spread by celebrities who question vaccine safety, like Jim Carreyand Alicia Silverstone, whose elevated status gives credence to their side’s views. With high-profile endorsements of anti-vaccination rhetoric, science is in dire need of a powerful ally. With only 77% of six-month-oldsfully immunised in New Zealand in 2018 (and none of the ages up to five within the recommended 95% threshold), it’s clear that parents don’t know who to believe. Given that New Zealand has high rates of infectious diseases, legal intervention is an option worth exploring. Making vaccines mandatory would be the unequivocal stamp of approval from New Zealand’s highest authorities – parliament, the government, and the courts – that this ‘debate’ is sorely lacking.

There is international legal precedent for mandatory vaccines. The Slovakian Constitutional Court ruled in 2014that the protection of public health overrides a person’s right to a private life, therefore compulsory vaccines were constitutional. 35.4% of European countries(such as Latvia, Belgium, France, Italy, and Hungary) enforce between one and ten mandatory vaccines.  China’s Expanded Program on Immunisationenforces some mandatory vaccines. In 2015, Pakistan enacted the ‘Islamabad Mandatory Vaccination Bill’to fight epidemics of polio. These are just a few examples of the many countries with mandatory vaccine laws.

Domestically, a mandatory vaccine law would be in keeping with our existing legal authority. Section 152(a) and Section 152(b) of the Crimes Act 1961has made a parent who fails to provide the necessaries of life and/or fails ‘to take reasonable steps to protect from injury’ (respectively) guilty of neglect and worthy of a conviction for manslaughter. The courts have stated in R v WitikaandR v Kuka, that failure to provide medical care constitutes failure to provide the necessaries of life. It follows that failing to take medically reasonable steps to protect a child from infectious disease could constitute failure to provide medical care.

Internationally, several US courts have ruledthat failure to vaccinate children constitutes neglect. Some of these US authorities did not consider it neglect if the parent held “a sincere religious objection”to vaccination. However, in New Zealand, we have legal authority for the proposition that failing to provide medical care on religious grounds is neglect. In cases such as R v Peni Laufau and Fa’afetai Laufau,R v Moorheadand the Jongkind case, the court found parents guilty of failing to provide the necessaries of life even though they believed in religious alternatives to medical treatment. Based on our case law, a religious exemption to vaccinations would not be legally justified.

The core of this debate is how far the law is entitled to encroach on people’s individual rights of decision. Crucially, vaccines are distinct from some medical laws in that they are not just about an individual’s right to care or health. One person’s decision not to vaccinate can introduce or allow to continue diseases that can have catastrophic effects on others. As Dr Saad Omerstated, “Infectious diseases are, by definition, infectious – your behaviour impacts my child’s health.” This is because of herd immunity– the scientific principle that if a large proportion of the population is immunised against a disease, it will be unable to spread. Herd immunity is key to protecting vulnerable young, sick and elderly people who cannot be vaccinated for medical reasons (such as low immunity caused by disease). By choosing not to vaccinate their children, parents are also deciding whether or not we will achieve herd immunity, and by extension, whether or not vulnerable people will be infected. Sometimes the law has to restrict rights to freedom for the good of society. We would not allow people to speed on the road on the grounds of ‘freedom of choice’, because they could potentially cause harm to others. The same principle applies in the case of vaccines.

Some contendthat there is limited evidence that compulsory vaccines increase vaccination rates. However, mandatory vaccine laws often allow for religious or ‘philosophical’ exemptions in addition to medical exemptions. For example, while all US states require children to be vaccinated before they attend school, only Mississippi and West Virginiado not offer religious or moral exemptions. We have laws against polygamy, honour killing, child marriage, anti-discrimination, abortion and any number of other activities that may violate people’s sincerely held religious beliefs. Yet, we enforce them for everyone, because that is the only way law can function effectively. We cannot have reliable data on whether compulsory vaccines are viable when people are allowed to opt out of a ‘mandatory’ programme.

Legally mandatory vaccines are not a guarantee of perfect health for everyone. They are not a guarantee that no-one will ever have an adverse reaction to a vaccine. What they are is a definitive step towards science, progress and social responsibility that will help our population stay healthy. Our government should decide that evidence is what matters. If the highest source of authority in our country threw its weight behind vaccines, then the fight for our children’s health would gain a powerful ally.


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