By Erin Talati
In my last post, I puzzled over the boundaries of the state’s right to step in to protect the interests of children over the religious wishes of their parents, prompted by the question of whether it would be appropriate to prophylactically transfuse the child of a Jehovah’s Witness in order to minimize the risk of future harm. As I continue to think about this question, I remain convinced that the boundaries are exceedingly fuzzy and do not necessarily seem to distinguish circumstances in a way that favors action “in the best interests of the child.” Rather, in looking at another situation in which the interests of the child may come into conflict with the religious or other interests of the parent, on the whole, it seems that the decision to intervene rests more on the legal basis for intervention rather than overall promotion of the best interests principle.
Take, for example, the general approach to vaccine refusals by parents. The rights of parents to refuse vaccines for their children, generally, can be grounded in medical, philosophical, or religious objections. Medical exemptions, based on medical contraindications to vaccination, remain the most robust mechanism of parental refusal. All states permit exemption from mandatory vaccination on the basis of medical exemptions. Exemption for medical contraindication is consistent with the best interests principle as vaccination in these cases arguably is not in the best interests of the child. Fewer states permit vaccine refusal on the basis of moral or philosophical objections. In almost all states, excepting Mississippi and West Virginia, parents can refuse vaccines for religious reasons, with states requiring varying levels of support for refusals grounded in religious objection. It seems reasonable that, from the standpoint of protection of individual liberties, states would preference religious beliefs of parents in allowing refusals. Still, when either a religious or philosophical objection are not concurrently accompanied by a medical contraindication to vaccination, neither justification for refusal promotes action in the best interests of the child.
One may argue that agreeing with this perspective assumes that vaccination is in the best interests of a child. One can imagine a situation where, when vaccination rates are high in a given community, individual parents may judge the risk of vaccine preventable illness to be low, and weigh this against the small but not absent risks of vaccination, ultimately deciding that vaccination is not in the individual child’s best interests. Yet, one can also imagine a situation in which this same child may be at high risk of morbidity or even death from a particular illness. For example, the same parent may refuse influenza vaccination for a formerly premature infant who would be at high risk of death from respiratory illness. In both situations, if the parent refused based on religious or philosophical objection and the state permitted objection based on these grounds, the refusal might be accepted. It is hard to argue, however, that the child’s best interests are promoted by permitting refusal in the latter case, where the risk of not vaccinating to the child is high.
Whether to vaccinate the high risk child in the latter case against influenza seems analogous to whether to transfuse the child of a Jehovah’s Witness who may be at high risk (but not risk of imminent death) for complications from disease without transfusion. In both cases, the proposed intervention goes against the religious wishes of the parents. In both cases, it seems, that it might be in the best medical interests of the child to proceed with the medical intervention. Yet, while there is precedent to support court intervention in one state for prophylactic transfusion, it is not immediately clear that the state would support intervention in either case fully against the religious wishes of the parents. And this position seems inconsistent with promotion of the best interests principle in providing health care for children. Furthermore, it seems inconsistent with the best interests principle that vaccine refusal in these cases might be permitted under a religious or philosophical objection, but not necessarily for the parent who actually weighs risks and benefits for their individual child with their health care provider and comes to the conclusion that vaccination may not be in the child’s best interests. In this situation, mandatory vaccination programs would still require vaccination.
This leaves me to question whether the best interests principle is truly operative in these cases or whether the legal basis for state intervention changes the way we view vaccination differently from other situations in which the state may step in to protect the child’s interests. The parens patriae function of the state serves well to allow the state to step in to protect vulnerable children or adults who may not be able to protect themselves. For the child who arguably needs a medical intervention to prevent risk of harm from a particular condition such as blood transfusion in the case of the Jehovah’s Witness child, this doctrine serves as the correct legal basis for state intervention. Vaccination programs have been conceptualized differently. Rather than enforcement of vaccination for the protection of individual children, mandatory vaccination programs first found legal support under the state’s police power, which necessarily allows the state to curtail individual liberties for the overall public welfare. This separate conceptualization of vaccination programs, however, appears at least superficially to allow choices that contradict the best interests principle, since it seems more difficult to justify curtailment of individual religious freedoms on the basis of public interest in vaccination than it might be to justify curtailment when the religious wishes of the parent were weighed against the individual risk of harm to a particular child from not vaccinating.
What are your thoughts? Is the best interests principle the wrong standard?