Written by Alberto Giubilini:

Oxford Martin School and Wellcome Centre for Ethics and the Humanities, University of Oxford

Vaccination has received a lot of media attention over the past few months following recent measles outbreaks and the introduction of rigid vaccination policies in some countries. Amid this discussion, a rather strange story hit the headlines a few weeks ago. According to reports, a woman in Michigan was sentenced to 7 days in jail because she refused to vaccinate her child, adducing personal religious reasons. Newspapers reported the story with somewhat misleading – though factually correct – titles, such as “Michigan mother jailed for refusing to vaccinate her son” or “Michigan mother sent to prison for failing to vaccinate her son.”

The titles are misleading because they suggest that in Michigan someone could be jailed merely for failing to vaccinate their children. This is not true. Vaccination in the U.S. is mandatory, but this only means that it is a condition for enrolling children in day care or school. Parents can still refuse to vaccinate their children, since home schooling remains an option and no penalty is attached to it. Besides, most states (with the exception of California, Mississippi, and West Virginia) allow parents to opt out of vaccination mandates by requesting an exemption for their child for personal philosophical, moral, or religious reasons (depending on the State) – what is sometimes referred to as “conscientious objection” to vaccination. In particular, Michigan allows conscientious objection and requires parents who apply for an exemption to attend educational sessions where they learn about the benefits of vaccination. Thus, it would have been within the woman’s right to simply file a vaccination exemption request for her child. Once again, no punishment would have been attached to such decision. So why was the woman jailed?

The woman was sentenced for contempt of court. This was on the basis of a previous court order to vaccinate the child that was part of an agreement with her ex-husband regarding the terms of custody of their son. It was the non-compliance with that agreement and the court order, rather than the refusal to vaccinate her child per se, that was punished. In other words, the fact that the matter of the agreement was the vaccination of their child was just a contingent fact: the mother would have been punished for failing to comply with the custody agreement, whatever its particular conditions. Thus, to say that a woman was jailed because she refused to vaccinate her child, though strictly speaking correct, is misleading. Non-vaccination is not legally punished in the U.S., either with imprisonment or with any other means. Also the prohibition to enrol non vaccinated children in school or day care – which is implemented in the U.S. and in some other countries as I discussed in a previous contribution – is not meant to be a punishment for those who choose not to vaccinate their children. Rather, it is a safety measure intended to protect other children – for example, those who cannot be vaccinated for medical reasons – from infectious diseases.

However, the misleading headlines are interesting because they raise the question as to whether parents who fail to vaccinate their children should be punished, possibly including with imprisonment. Here I want to explore the reasons for and against this idea. Failing to vaccinate one’s children might be seen to deserve legal punishment not because non-vaccination poses a significant threat to the health and the life of vulnerable people, such as those who cannot be vaccinated or for whom vaccination turns out to be ineffective. Rather, the reason why non-vaccination might be thought to be punishable by law is that people who fail to vaccinate their children are not fulfilling their duty to make their fair contribution to a public good like herd immunity, which protects vulnerable members of their community. Herd immunity occurs when a large enough portion of the population – typically between 90% and 95% – is vaccinated and an infectious disease is therefore very unlikely to spread.

In a couple of papers I have co-authored with colleagues at Charles Sturt University and at the University of Oxford, we suggested that parents who are granted an exemption from vaccination mandates should be required to compensate society for their failure to contribute to public health. More precisely, we argued that they should be required either to make a financial contribution, proportionate to the degree of risk that non-vaccination poses on other people (which is a function of the vaccine coverage rate in a certain geographical area), or to provide an alternative service that would contribute to the promotion of public health, such as participating in fund-raising activities for charities seeking to develop cures for certain diseases.

Neither option was meant to be a punishment for non-vaccination; rather, each was intended as a way of compensating society for the failure to contribute to a public good like herd immunity. The arguments were based on analogy with conscientious objection to the military service, where individuals are normally required to make an alternative contribution to the upkeep of their society when they refuse to make a military contribution to national defence. However, one could ask whether an actual punishment, as the newspaper story implied, rather than a mere compensation, should be applied to those who refuse to vaccinate their children. Normally, legal punishments consist either in financial penalties or jail time.

So, should parents who refuse to vaccinate their children be punished, either financially or with (perhaps short) jail time? In fact, in some countries legal sanctions for non-vaccination are already in place. In Italy, for example, parents who refuse to vaccinate their school-age children are fined. What is the ethical justification for punishing parents who do not vaccinate their children, and therefore for treating non-vaccination as a crime?

Vaccinating one’s children is like paying taxes. We all have a moral and a legal duty to pay taxes because we have a moral and a legal duty to contribute to the upkeep of our society and to its public goods (e.g., a good public health system, national defence, etc.). Paying taxes is a moral duty because 1) it entails a relatively small cost to individuals, 2) when done collectively, it greatly benefits the community, and 3) it is fair that everybody makes their contribution to a collective enterprise that can greatly benefit the community. But paying taxes is also a legal duty because it is necessary for the upkeep and the functioning of society, and because it is fair to legally require everybody to make their contribution to the functioning upkeep of society; in other words, paying taxes contributes to the preservation of public goods that are vital for a functioning society and the welfare of individuals.

In the same way, we have a moral duty to vaccinate our children: it is a small-cost way to contribute to an important public good like herd immunity. In other words, vaccinating our children is a moral duty for exactly the same reasons as paying taxes is a moral duty. And vaccinating our children should be a legal duty for exactly the same reasons as paying taxes is a legal duty: collective vaccination protects a public good like herd immunity which is vital for the functioning of society and the welfare of individuals, and it is fair to legally require everybody to make their contribution to such an important public good.

In these respects, paying taxes and vaccinating our children are different from contributing to other public goods that are not so important for the functioning of society and the welfare of individuals: for example, there is no moral duty, and there should be no legal duty, to financially contribute to funding fireworks shows, which are also public goods. But the public goods protected through taxation and through vaccination are important enough to warrant making individual contributions a legal requirement. Accordingly, exactly as tax evasion is considered a crime punishable with fines or even jail, we might extend such a principle to vaccine refusal and argue that it should be punishable to some extent.

Appeals to individual autonomy to justify failing to contribute to certain public goods are normally not taken to be valid reasons for refusing to pay one’s fair share of taxes; the same consideration should apply to decisions about whether to vaccinate one’s children. This is because, as mentioned above, both paying taxes and vaccination should be legal duties, and one cannot be exempted from legal duties simply by appealing to autonomy: if she could, these would not be legal duties.

Besides, exactly as is the case with individual vaccination, which might not be necessary if enough others are vaccinated, society could function well even if there are a few free-riders who enjoy public goods but do not pay their taxes. Still, this fact is not considered a good reason for exempting some individuals from paying their fair share of taxes; once again, the same consideration should be applied to decisions whether to vaccinate one’s children.

Finally, there is no legal “conscientious objection” to paying taxes; for example, I cannot refuse to pay part of my taxes just because I disagree with, say, the military policies of my country. In the same way, it should not be permitted to refuse to vaccinate one’s children just because someone is ethically or religiously opposed to vaccines. Someone might object that there should be legal conscientious objection to paying taxes (and therefore to vaccination), but the burden is on them to argue for this claim; as noted above, mere appeals to autonomy are not good enough reasons for being exempted.

Thus, there is a good argument that vaccine refusal should be treated like tax evasion, i.e., as a crime, punishable by law. In the US, “any person who willfully attempts in any manner to evade or defeat any tax imposed (…) or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution.” There is no reason why the same type of penalties, at least fines, should not apply to the failure to vaccinate one’s children: in both cases individuals would fail to fulfil their duty to contribute to valuable public goods. As a matter of fact, in Australia, the government already makes people financially worse off if they fail to vaccinate their children. While it does not fine those who don’t vaccinate, it denies them child benefits. This is in many respects equivalent to a fine.

It could be objected that vaccination involves some significant costs to parents and to children, and therefore it should not become a legal requirement. Such costs include having to pay a visit to the doctor, experiencing the local pain of the injection, or incurring some (very small) risk of side effects. Now, safety concerns are unwarranted given the best available science, and as such should not shape public policies. As has repeatedly been established—as well as anything can be established empirically—the risks of side effects of vaccines are very small, the potential side effects are very mild, and the benefits to the individual vastly outweigh the risks. For instance, anaphylactic reactions, which are the most serious side effects, happen in less than 1 in a million vaccinated, while 2 out of every 1,000 children who get measles will die from it, 1 in every 1,000 will develop encephalitis, and 1 in every 20 will get pneumonia, which is the most common cause of death from measles in young children. The other types of costs involved in vaccination, such as doctor-visits and the short term pain of the injection, seem to be very small, and therefore do not constitute good enough reason for not punishing non-vaccination. Paying taxes also involves some costs to individuals, but people should pay a certain reasonable amount of taxes to contribute to the common good. The same consideration applies to vaccination and the small individual costs it entails.

Whether or not to vaccinate one’s children is not merely a private choice, and it cannot be a matter of parental autonomy. Vaccinating one’s children is a civic duty, i.e., a kind of responsibility each of us has towards our community. As such, it remains a moral obligation, and as I have argued it should be made a legal obligation, even where herd immunity already exists and even if the contribution of each vaccination to the public good of herd immunity is negligible. Parents who refuse vaccination for their children fail to display a sense of community, since they are not prepared to make small personal sacrifices for the sake of others. Exactly like tax evaders, then, they should be punished at the very least through substantial fines.[1]

Footnote

[1] When tax evasion is especially egregious, the perpetrator is jailed. Refusing vaccination does not generally have catastrophic social effects from a single instance of refusal. However, were some kind of unprecedented epidemic to occur, the non-vaccinated might need to be put in isolation, which is a kind of imprisonment. Fortunately, such epidemics are not currently occurring in the West.