Legislation made the anti-vaccine movement possible—and as the example of West Virginia shows, it can also help fight it.

States can require vaccines for children entering child care and elementary school, but states vary in the kinds of exemptions they offer. (Photo: Joe Raedle/Getty Images)

West Virginia is not known for its public-heath advances. Since 2016, a raging opioid epidemic has consumed the state, which consistently ranks in the bottom 10 for overall health outcomes. Its residents face some of the highest rates of obesity, cigarette use, and mortality in the country. But when it comes to immunization policy, West Virginia is the gold standard.

How did this happen? The state legislature has maintained strong vaccination policies for decades, resisting the political pressure to expand exemptions to vaccination mandates. It's the only state that has never had non-medical exemptions, and, as a result, it has not experienced a measles outbreak in 25 years.

In recent decades, a few states (most recently, California) have made similar advances on vaccine policy, often in response to public-heath crises. Washington State's senate voted last week to advance a measure removing the non-medical exemptions amid an ongoing measles outbreak. But even more states have done the opposite: Last week, a panel of Arizona lawmakers approved a proposal to expand exemptions, a move that research shows can harm herd immunity and increase the risk of outbreak.

In tracking the anti-vaccine movement, we tend to focus on the role of a small but vocal contingent of anti-vaxxers. But decades of legislation made that movement possible—and, as West Virginia shows, it can also help fight it.

The Origins of Vaccine Exemptions

Public opposition to vaccines has taken many forms over the years, as Pacific Standard has reported, including concerned parents, fraudulent studies, celebrity endorsements, and anti-vaccine propaganda. But this skepticism wasn't codified until the 1970s, when states began passing religious exemptions to public-school vaccine requirements. Under the 1905 Supreme Court ruling Jacobson v. Massachusetts, states can require mandatory vaccines for children entering child care and elementary school. Medical exemptions have almost always been on the books, for the few children who can't be vaccinated for medical reasons; religious exemptions arose later, amid a new emphasis on religious freedom and conscientious objection during the Vietnam War, according to Ross Silverman, professor of health policy and management at Indiana University–Purdue University Indianapolis.

"The interest in allowing exemptions is really a political one," he says. "It's a decision by the legislature, when it tries to balance protecting the public's health with allowing families to make decisions about their own care."

But these lawmakers underestimated the role such exemptions would play in the anti-vaccine movement decades later. "They knew that vaccination was a well-trusted intervention—people had seen the hundreds of thousands of people affected by measles and polio and the like over the years [who] had been injured or died as a result of exposure to these infectious diseases," he says. "They figured it was a bit of a safety valve that would allow for those limited number of folks who might need access to it to have it."

Starting in the late 1990s, 17 states also expanded their laws to include personal belief or philosophical exemptions, after some religious exemptions were found to be discriminatory. Rather than amend these policies, the legislatures opened them up. "'Philosophy' could just mean 'I don't like needles,'" Silverman says. "Those laws are much, much broader. You can basically drive a truck through those exemptions."

Why West Virginia's System Works

West Virginia is the only state that resisted. Silverman says it has followed an "unbroken" line on vaccine mandates, from the 1800s to further protections in 2015. When others were rolling back their policies, the state added mandates for daycare and preschools and set up a review process for medical requests—the kind of lever that experts say could help California, which is facing higher rates of medical exemptions after banning personal exemptions in 2015.

Silverman says West Virginia's success is largely because of these laws, which kept the exemption process narrow, but also because the state's public-health agencies have worked closely with the legislature. Mississippi joined West Virginia's ranks in 1979, when its Supreme Court found the state's religious exemptions to be unconstitutional—the only such ruling so far; the court cited a previous ruling, Prince v. Commonwealth of Massachusetts, that determined "the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death." Mississippi, like West Virginia, has some of the highest vaccination rates in the country and hasn't had a measles outbreak since 1992.*

"Neither state has had an outbreak of measles in 25-plus years," Silverman says. "That in and of itself shows it's good public-health practice. Why create problems when the system you have works?"

As the anti-vaccine movement has grown over the past two decades, compromising herd immunity in many states that allow these exemptions, others have followed: Vermont repealed its philosophical (but not religious) exemptions in 2015, and New Jersey has considered requiring proof for religious exemptions. "Many of these legislative fixes fall well short of removing exemptions based on religion or personal philosophy," Tony Yang, professor of health services and policy at George Washington University, wrote for the Conversation.**

When an Outbreak Begins, a Policy Window Opens

If banning exemptions works so well, why hasn't the rest of the country done it? Silverman, again, chalks it up to politics, noting that public health will always be political. And, he says: "In many states, the system seems to be working pretty well—the balance is still OK, so a lot of legislatures just don't tend to tinker with things unless there's a crisis. The policy window doesn't open unless you've had an outbreak in your backyard."

But even in states where that window has been open for some time, like Texas (with eight measles cases confirmed this year), little progress has been made. Texas, Montana, Iowa, and Arizona are all considering bills that would make it easier for people to get exemptions. In West Virginia, too, a small group of parents are asking for "more choice" in the public-health system, claiming their children had adverse reactions to the seasonal influenza vaccine. (According the Centers for Disease Control and Prevention, some people report mild side effects to the flu vaccine, but serious reactions are very rare.)

Rahul Gupta, West Virginia's state health officer and commissioner of the West Virginia Bureau for Public Health, has said the state's medical exemptions suffice. "It's not about a philosophy," Gupta told the Register-Herald. "It's about the best way to protect your child."

*Update—March 7th, 2019: This post has been updated to clarify that the Mississippi Supreme Court cited an earlier U.S. Supreme Court case when it ruled that the state's religious exemptions were unconstitutional.

**Update—March 1st, 2019: This post has been updated with Tony Yang's current position.