Colorado's Non-Medical Vaccine Exemption Form Ruffles Anti-Vaccine Feathers

Back to school time. Show your child you care about their health.
Image Source: South Florida Caribbean News

Note: see update at the end of the article.
 
School is nearing (or already upon us) in many states. Parents are out buying notebooks, pens and pencils, folders, and new clothes for their children to make sure they're ready for the first day. It's also the time when many parents need to make sure that their children are up to date on their vaccinations in order to attend school. Naturally, this is also a time that anti-vaccine activists absolutely hate, especially in states where public health officials have taken efforts to ensure parents are better informed about vaccines and the diseases they prevent, as well as making opting out of vaccinations closer to the same burden that exists for those who choose to protect their children from diseases.

One of the latest battlegrounds is Colorado. Anti-vaccine activists and organizations, like the National Vaccine Information Center, are really upset with Colorado. Nothing has changed with regard to the law in that state, though. Non-medical exemptions haven't been removed, like they have in California. Parents aren't required to sit through an educational session on the benefits and risks of vaccines and the diseases they prevent. All that changed is this year's vaccine exemption form and the rules around its use.

First, let's back up a little bit. In 2015, Colorado's Board of Health revised the Infant Immunization Program and Immunization of Students Attending School rule (6 CCR 1009-2). Previously, parents who wanted to opt out of immunizing their children, whether for religious or personal belief reasons, could submit an exemption form once and be done with it. The revised rules require submission of the non-medical exemption form every year (or more frequently for infants in day care). By contrast, medical exemptions, both under the old rules and the new ones, only need to be submitted once.

Naturally, that rankles those opposed to vaccines. When I initially gave this some thought, I have to admit I actually agreed (to a slight degree) that that portion of the new rules could be overly burdensome for non-medical exemptions, if we compare the overall burden among those who do and do not vaccinate. I also thought that the medical exemptions process is too lax, compared to vaccinating or eschewing vaccines for personal reasons. However, after talking it over with a friend, I've changed my mind. I don't believe that annual submissions of the exemption form are overly burdensome. Those who choose to protect their children from preventable diseases must take time out of work and/or school to go to the doctor's office, wait, be seen, then travel back home. Likewise, those who need a medical exemption must also go to their doctor to get it signed. By contrast, those who opt out of vaccination for non-medical reasons, merely have to complete and submit the exemption form online or print it and send it with their child to school. An argument might be made that submitting the form every year is overkill and that a laxer schedule would suffice. At the bare minimum, if we wish to be equatable, exemptions, whether medical or non-medical, should be submitted at the same schedule as vaccinations are recommended, as well as when a child changes schools, if not more frequently. All that said, under Colorado state law, the department has the authority to require exemptions be submitted at any interval they choose.

The revised rules also approved a new online educational module, as required by 2014's House Bill 14-1288. That bill required the Board of Health to make available "evidence-based research, resources and information from credible scientific and public health organizations". The module includes a lot of links to additional information, though some of the slides are a bit difficult to read due to small font sizes.

Those two aspects of the new rules aren't really what has the anti-vaccine community in an uproar. Certainly, they don't like the frequency of submitting non-medical exemption forms, but there is something new this year that really has them upset.

For 2016, the Board of Health revised the non-medical exemption form to include attestations that the parent understands the risks of not vaccinating. For example, for each vaccine being declined, the form requires them to note that they understand that:

My child/I may be at increased risk of developing [disease(s)] if exposed to [this disease/these diseases].

Pretty straightforward and in line with reality. If a vaccine is declined, the child may be at increased risk of getting the disease if exposed. This is supported by studies such as "Parental refusal of pertussis vaccination is associated with an increased risk of pertussis infection in children" (Glanz et al., Pediatrics, 2009). We've also seen an example of this in the United Kingdom; when MMR uptake plummeted following Andrew Wakefield's (who calls the vaccination program a "deliberate eugenics program") fraudulent paper, measles, which had been eliminated in the country, came roaring back. Each vaccine entry also describes the disease and includes a link to the corresponding Vaccine Information Sheet. But still, that's not the really big thing that has the anti-vaccine groups riled up.

Instead, it's the following statement on the form:

Failure to follow the advice of a physician, registered nurse, physician’s assistant, or public health official who has recommended vaccines may endanger my child’s/my health or life and others who come into contact with my child/me.

Most news stories talking about this have only provided that statement in isolation. Here it is in context:

I am the parent/guardian of the above-named student or am the student himself/herself (emancipated or over 18 years of age) and have a religious or personal belief that is opposed to vaccines. By signing this form, I am declining the vaccine(s) required for school entry for my child/myself, as initialed above, and understand the following:

• My child/I may not be able to attend child care or school during a disease outbreak. 

• Some vaccine-preventable diseases are common in other countries and my child/I could easily get one of these diseases while traveling or from a traveler. 

• Failure to follow the advice of a physician, registered nurse, physician’s assistant, or public health official who has recommended vaccines may endanger my child’s/my health or life and others who come into contact with my child/me. 

• I may change my mind at any time and accept vaccination(s) for my child/myself in the future. 

• I can review evidence-based vaccine information at www.colorado.gov/cdphe/immunization-education, or www.ImmunizeforGood.com to learn about the benefits and risks of vaccines and the diseases they prevent. 

• I can contact the Colorado Immunization Information System (CIIS) at www.ColoradoIIS.com or my health care provider to locate my child’s/my immunization record.³

The information I have provided on this form is complete and accurate. I acknowledge that I have read this document in its entirety and fully understand it.

There are two primary arguments that I've seen against the offending statement: conflict with beliefs and violation of free speech.

Belief vs. Facts

Many of the news stories (e.g., Concerned parents seek to change wording of Colorado's non-medical vaccine exemption form, The Denver Channel) have some parent comment along the lines of, "I don't believe this to be true". Some also suggest that parents are interpreting this as stating that they are, rather than might be, putting their children's health at risk.

Unfortunately for those parents, reality doesn't particularly care what they do or do not believe. The plain facts, backed up by many studies from various sources around the world, are that vaccines prevent infection and/or transmission of the diseases they protect against, and that those who are not vaccinated are at a greater risk of infection than those who are vaccinated. These parents might also believe that the Earth is flat, that the moon landing was a hoax, that man-made climate change is not occurring, or that not washing their t-shirt will help their favorite sports team win. But simply believing something to be true does not change reality to fit your beliefs. The Earth is round (well, an oblate spheroid), we actually did land people on the moon, man-made climate change is happening, and that t-shirt is just getting dirty and smelly without bestowing any magical good luck on your team.

Violating Free Speech

The other argument, being promoted by anti-vaccination organizations like the National Vaccine Information Center (which changed their page on Colorado's exemptions sometime between May 25, 2016 and August 24, 2016, urging readers to consult a lawyer), is that the statement amounts to "compelled speech" and is thus a violation of the 1st Amendment. (A nice article on compelled speech can be found here.

Before I go further, let me note that I am not a lawyer and am not offering legal advice. I would, however, like to talk about how I interpret the legal aspects at play. I invite lawyers with relevant expertise to correct any errors that I make.

The primary argument made by objectors to the form's language is that the 1st Amendment protects not only the right to speak what is in our minds, but also the right to not speak what is not in our minds. The origins of the compelled speech doctrine go back to the 1940s in a case where students were forced to recite the Pledge of Allegiance (West Virginia State Board of Education v. Barnette). Those who failed would be expelled, and their parents faced potential legal charges. In that case, the courts ruled that individuals could not be compelled to express a belief or ideology that they did not hold or that conflicted with their beliefs.

Further cases have made further distinctions about when the state can and cannot compel certain kinds of speech. For example, the state cannot compel politicians to speak only the truth when they're on the campaign trail. The state can compel a company to disclose information that helps to inform the consuming public (e.g., calorie counts in restaurants, cancer risks on tobacco products, etc.). The compelled speech, though, must be uncontroversially factual in nature, must provide information and needs to serve a compelling state interest. Importantly, the language cannot be "normative", that is, telling consumers what they should or should not do, rather than just providing information to make an informed choice. For example, the state could compel a restaurant to disclose that a sandwich has 800 calories, but it could not compel the restaurant to issue a statement that consumers should not eat the sandwich if they're overweight, even though the end result and goal are the same: to get people to make healthier eating decisions.

Opponents of the form's language argue that by signing it, they are being forced to state that they are placing their children in harm's way, when, in fact, they believe that they are doing what is best for their children. For example, the Home School Legal Defense Association (as a brief aside, the exemptions forms are not required for parents who home school their children) writes (emphasis added)

First is the requirement that parents affirm that by exempting their child from immunizations they are endangering the life and health of that child.  We understand that, for some, this statement is a viewpoint at odds with their personal and/or religious beliefs.

I'm not certain how compelling this argument would be. First, in virtually every argument against the form I've seen, it is assumed that parents are being forced to admit that they are, unequivocally, putting their children at risk. However, that is not what the form says. At every point in the form where the risks of not vaccinating are mentioned, the form uses the word "may", implying that while there could be an increased risk of harm, it is not a certainty. It does not say that the child will get the disease, nor that failure to follow a physician's advice will endanger the child's health; it is merely the expression of the possibility that this could happen.

Second, the government of Colorado has a rather compelling interest, that is, ensuring that parents are informed and understand the ramifications of their decision. Along these lines, the form informs parents of the risks posed by the diseases and by not vaccinating. It includes links to additional information. It requires that parents acknowledge that they understand the information provided to them and what effects their choices might have. It does not require them to profess belief in that information, nor does it require them to reject their own beliefs. Parents are still free to believe and to express the belief that they are doing what they think is best for their child, whether that stems from simple unease about the vaccines or from a belief that vaccines are part of some conspiracy to kill or control the populace. Parents are not being asked to set aside their own ideology and accept some other ideology with which they disagree.

Interestingly, despite outcries that the form's language is unacceptable, I've yet to see any suggestions as to what should be used instead. My guess is that opponents would prefer the language to simply be removed entirely. If the form did not include statements about the factual risks of not vaccinating, the state would not be performing its charge to adequately inform parents.

One fundamental aspect of this issue, of course, is that while the government has more leeway to compel speech when it is commercial in nature, there is no commercial speech in this instance. That could make it more difficult for the Board of Health and the Colorado Department of Public Health and Environment to defend the form. If the department does not change the language (and perhaps even if it did), I foresee this going to court. The outcome would largely depend on the judge and how well the state presents their arguments.

Conclusion

To sum up, the non-medical exemption form makes several factual statements regarding the risks of the diseases and the risks of not vaccinating against those diseases. Those who do not vaccinate are, on average, at an increased risk of infection compared to those who do vaccinate. Similar to how school tests gauge whether students understand the material they were taught, but do not require them to accept that material as true, the form requires parents to affirm that they understand these facts, regardless of whether or not they accept them as true. It does not require them to state that they believe they are endangering their children's health. Parents are still free to believe that they are doing what they think is best for their children, and they are free to express that belief to others.

The Colorado Department of Public Health and Environment could be proactive and change the language to something like:

The scientific literature suggests that my child/I may be at increased risk...

and

The scientific literature suggests that failure to follow the advice of a physician...

These minor changes would make the forms more belief- or ideology-neutral. However, I don't see any language discussing the risks of not vaccinating being acceptable to those who are opposed to vaccinations. Those who reject vaccines on ideological grounds tend to believe that vaccines do not work to prevent disease and that the risks of vaccines are much greater than they really are.

[Updated 9/7/16: As of September 1, 2016, the Colorado Department of Public Health and Environment has updated the non-medical exemption form. The form no longer contains "I/my child" language that anti-vaccine activists found so objectionable. Gone, too, is the "Failure to follow the advice of a physician...may endanger my/my child's health" language. It does, however, still note that unvaccinated children may be at increased risk of developing the disease prevented by the declined vaccine, and notes that children with exemptions may be kept out of child care/school in the event of an outbreak.]