By T. Patrick Hill

If only the parents and their allies, storming the Trenton barricades earlier this week, could hear what they were saying and to whom they were actually saying it to.

They thought they were speaking to members of the legislature about a bill that would eliminate religion as a reason for school children to avoid getting vaccinations (S2173). Not so. They were speaking to parents who agree with the necessity of vaccination, and what they were saying was not very nice. It went something like this.

“No one is going to tell me that I must vaccinate my child. It’s not safe. Now, if you want to vaccinate your child, even though I believe that is risky, be my guest. And by the way, I’ll be willing to take advantage of the risk you are exposing your child to. And for good measure, I fully expect to enjoy all the other benefits afforded by public schooling, including the health of my child. Just don’t expect me to do my share of what is needed to secure those benefits.”

We have a word for this. It’s freeloading. And no invocation of one’s rights, including the constitutionally protected right to the free exercise of one’s religious beliefs, can disguise that. Worse, such appeals are an abuse of the very idea of rights.

While it is true that rights give expression to a freedom that is essential to our being human, since that freedom is enjoyed by every human being, it cannot be exercised by any one individual without due regard for the freedom of others. One may have paid their dues to the local golf club, thereby enjoying the right to use the club’s facilities. But not, however, in a way that interferes with the use of those facilities by other club members, any more than their use might interfere with one’s own use of those facilities.

In other words, rights are designed for life in society. If we were living in splendid isolation, like Robinson Crusoe on his desert island, there would be no need for rights, or laws for that matter. Entirely alone, he could do nothing that had any effect on anyone else. Life in society is not like that.

One individual’s behavior has unavoidably the likelihood of affecting another individual. When one parent refuses, as a matter of parental rights, to have their child vaccinated, that refusal has immediate consequences that cannot be dismissed out of hand before determining whether they are acceptable or not. For example, would it set a precedent, enabling other parents to refuse, with the consequence of compromising what is known as herd immunity or the protection from infectious diseases secured by having a sufficient proportion of any given population vaccinated?

When Charles H. Brown, on religious grounds, appealed Mississippi law requiring vaccination for his son before admission to elementary school, the State’s Supreme Court, in its 1979 decision, rejected the appeal, declaring the law reasonable and constitutional. The Court went further, claiming that an exemption on religious grounds would “discriminate against the great majority of children whose parents have no such religious convictions.” To do that, the Court concluded, would violate the Fourteenth Amendment, ensuring equal protection of the laws.

In a 2002 decision, the federal court for the Eastern District of Arkansas concluded that the State’s exemption from vaccination on religious grounds discriminated against those religious beliefs that had no objection to vaccination. That resulted in the State’s unnecessary involvement in religious matters, threatening presumably the constitutionally required separation of church and state. What should not be ignored in these two decisions is that in the absence of any exemptions, other than those on medical grounds, laws requiring vaccination are constitutional because they address a compelling interest of the state in the public’s health.

Indispensable as these considerations are, if that is all we consider, we run the risk of missing the real point here. Fortunately, the Mississippi decision did not. For it is clear that the Court understood the law to address an even more compelling interest, that of the children whose parents, by refusing vaccination, were seriously endangering. It was, the Court concluded, without doubt that vaccination had been shown, over an extended period of time, to be effective and safe. In a memorable observation, it warned us that “a child is indeed himself an individual, although under certain disabilities until majority, with rights to his own person which must be respected and may be enforced.”

What was true then remains on both counts true today. One can only hope that the New Jersey legislature recognizes that the overriding interest here is the well- being of children under threat from parental refusal of vaccination. If so, children’s rights will be honored and their parents will be saved from their foolhardiness.

T. Patrick Hill Ph.D. is an associate professor at Rutgers University where he teaches ethics and law in the Edward J. Bloustein School of Planning and Public Policy.

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