How Vaccine Loopholes Could Weaken COVID Shot Mandates for Kids

Education Week | By Evie Blad | September 28, 2021

In the years leading up to the pandemic—and the development of a COVID-19 vaccine for children—states around the country sought to tighten loopholes that allow parents in virtually every state to opt their children out of routine vaccines required for school attendance for religious or philosophical reasons.

Their efforts were met with tense debates about personal freedom, religious liberty, and community health. Several, including California and Connecticut, successfully limited reasons parents can opt their children out, despite dramatic and emotional protests.

As the Pfizer-BioNTech COVID-19 vaccine for children ages 5-11 nears likely federal approval, states will face the tricky question of whether and how to require it for students. And the debates of the last decade will inform their efforts.

“I think people underestimate the strength of feeling people have about this at their peril,” said Jon Zelner, an assistant professor of epidemiology at the University of Michigan who has studied efforts to strengthen state vaccine laws.

Every state in the country requires children to be vaccinated for illnesses like measles, mumps, and rubella as a condition of school attendance or enrollment in child care. Those schedules are generally adopted by state lawmakers or by health officials empowered through state law, and they generally follow the recommendations of a Centers for Disease Control and Prevention advisory panel.

In the past decade, lawmakers around the country have focused their efforts on narrowing or eliminating broad “personal belief” or “philosophical” exemptions from school vaccine requirements that have seen surging interest as misinformation spreads about common childhood vaccines.

Some have also sought to eliminate religious exemptions, citing lack of opposition to inoculations from major religious leaders.

As the Food and Drug Administration prepares to approve an emergency-use authorization for a COVID-19 vaccine for children as young as 5, states will face a choice. Should they require such a vaccine for children statewide? And, if they do so, will they add it to a schedule of inoculations required under current—sometimes restrictive— state laws? Or will they create a new policy that applies only to the COVID-19 shot?

Many governors have said decisions about children’s COVID-19 vaccine mandates won’t come until federal officials give permanent approval to the inoculation for all age groups. Some states— including Alabama, Arizona, and Florida— have explicitly prohibited school districts and local officials from setting such mandates.

California Health and Human Services Secretary Dr. Mark Ghaly addressed the issue more directly than most state officials when he said Sept. 23 that the state would consider whether it should add COVID-19 to its list of mandated school vaccines. The state’s existing school mandate is one of the strongest in the country following several revisions in recent years that narrowed reasons families could opt out.

Meanwhile, officials in other states have used skepticism about the COVID-19 vaccine to challenge existing vaccine requirements for children.

Responding to federal employee vaccine directives issued by President Joe Biden, Florida Republican State Sen. Manny Diaz said Sept. 23 that the state should “review” existing school vaccine requirements for diseases like measles. He later walked those remarks back after they were met with a flood of criticism.

Exemptions challenge a tool health officials see as essential

Public health officials have called school vaccine requirements an essential tool in helping the United States reach “eradication” status of preventable illnesses.

As the COVID-19 pandemic has spilled over into a third consecutive school year, federal officials have voiced increasingly strong support for states to add COVID-19 to their list of school-required shots.

“I believe that mandating vaccines for children to appear in school is a good idea,” Dr. Anthony Fauci, Biden’s chief medical advisor, told CNN in August. “We’ve done this for decades and decades, requiring polio, measles, mumps, rubella, hepatitis” vaccinations.

U.S. Secretary of Education Miguel Cardona recently said he “wholeheartedly supports” state and local vaccine requirements for eligible students.

“It’s the best tool that we have to safely reopen schools and keep them open,” Cardona told the Washington Post. “We don’t want to have the yo-yo effect that many districts had last year, and we can prevent that by getting vaccinated.”

Non-Medical State Exemptions from School Immunization Requirements, 2021

But the success of those mandates is in the details. Varying loopholes have led to huge opt out rates— and occasional local outbreaks of diseases like measles— in some areas. In the 2019-20 school year, nonmedical exemption rates were as high as about 7 percent of all kindergarteners in states like Idaho and Oregon, the most recent federal data show.

“We have a big problem where people are refusing the vaccine not based on medical condition, not based on sincere religious belief, but because people are getting a lot of misinformation and disinformation,” said Dr. Richard Pan, a pediatrician and California state senator who has championed efforts to tighten vaccine rules there. “Social media has been a very effective tool in targeting people with this misinformation.”

Fifteen states allow parents to opt their children out of the mandates for philosophical reasons, according to the National Conference of State Legislatures. That process is sometimes as easy as signing a piece of paper without listing any specific ideological objection.

Forty-four states allow exemptions for religious reasons.

Six states— California, Connecticut, Maine, Mississippi, New York, and West Virginia— only allow medical exemptions.

That history has created some interesting context for pandemic-era debates about personal freedom and government intervention.

While Mississippi Gov. Tate Reeves, a Republican, criticizes COVID-19 vaccine mandates as “tyrannical,” his state has long been heralded for having the highest rates of routine, pre-pandemic childhood vaccinations in the country, thanks in part to a restrictive mandate that gives parents very few ways to opt out.

The Mississippi rule was created in the wake of a 1979 decision in which the state’s supreme court struck down its existing narrow religious exemption. The decision came in response to a chiropractor who sued to exempt his son from the mandate even though the family’s Church of Christ congregation was not opposed to them.

“To the extent that [the state’s vaccine law] may conflict with the religious beliefs of a parent, however sincerely entertained, the interests of the school children must prevail,” the court ruled, calling the mandate “a reasonable and constitutional exercise of the police power of the state.”

The U.S. Supreme Court has backed state’s right to require vaccinations in the interest of the well-being of the general public, but it has never ruled on religious exemptions to such mandates. In the 1922 case of Zucht v. King, the court held the city San Antonio could bar an unvaccinated child from attending school in violation of a local policy.

Legal experts have said it can be difficult to determine the validity of a religious exemption claim. With COVID-19, for example, leaders including Pope Francis, prominent rabbis and imams, and Robert Jeffress, a Dallas pastor and evangelical adviser to former President Donald Trump, have urged followers to get vaccinated.

But individual believers often cite strong personal convictions. In Connecticut, for example, Catholic and Muslim parents filed a federal lawsuit seeking to restore the state’s religious exemption. They cited concerns about the use of cell lines that descended from aborted fetal cells to research vaccines.

When state lawmakers voted to eliminate that exemption in April, parents who objected to the move resisted scrutiny of their religious convictions.

“I interpret the law of do no harm as being very personal and specific to how the vaccines were affecting our family,” Rachel Oshrin, a Jewish mother who said would consider home-schooling her son rather than getting him vaccinated, told local news station WFSB.

When Mississippi activists have repeatedly and unsuccessfully sought to restore a religious exemption there, they’ve cited a mix of religious ideas, personal ideologies, and discredited research about vaccine safety to justify their efforts.

Plugging loopholes proves a frustrating task

The diffuse and shifting nature of vaccine objections can make it difficult for lawmakers to set effective policy. It can be sort of a game of policy Whack-a-mole, lawmakers say. When they address one concern, a new one quickly emerges.

“People are pretty motivated so if there is a door or window, they’re going to find a way through it,” said Zelner, the Michigan professor.

Michigan at first saw a decline in claims of nonmedical exemptions from children’s vaccine requirements in 2015 after the state’s health department began requiring families to complete an education session at their local health department before obtaining a waiver. After exemption claims initially dropped by 32 percent, however, they had nearly completely rebounded by 2018, Michigan researchers found.

California saw the same effect when it passed a similar counseling requirement. “It was a temporary drop,” said Pan, the state lawmaker.

The state eliminated personal belief exemptions after a 2015 measles outbreak at Disneyland. Soon after, it saw an increase in medical exemption waivers, some issued by medical providers who charged families for their signature without verifying a legitimate claim. State lawmakers responded by passing a 2019 law that added new requirements for medical exemptions, including a data base to track how doctors are issuing them.

Schools have had similar concerns with mask mandates. In some states, providers like chiropractors have signed hundreds of medical exemption requests for students.

It remains unclear how many states will incorporate COVID-19 into their school-mandated inoculation schedules. In the absence of state action, a handful of large districts, including Oakland, Calif., and Los Angeles, have set requirements of their own.

But district leaders say state mandates would give them political cover and clearer criteria for enforcement.

Among the issues states will have to consider are whether to wait for full approval from the CDC for younger children, rather than an emergency-use authorization; whether the vaccine will require frequent boosters, which could be logistically challenging for schools to monitor; and how much vaccine rates grow without mandates in place, Pan said.

They will also have to determine if they should use their existing school vaccine rules or set a separate policy for COVID-19 shots, which may have differing exemption requirements.

While children are less likely than adults to grow severely ill or die from COVID-19, vaccines could help reduce transmission risk in schools. And mandating vaccines in children could help drive up vaccination rates in overall communities, helping to slow the emergence of new disease variants and restore a sense of normalcy, Pan said.

“We have to come together and stop this thing,” he said.

Whether states set mandates or not, understanding the factors that drive exemption requests can help leaders communicate with hesitant parents, Zelner said.

And they can sell the benefits of increased vaccination rates as they make their case, he said, touting fewer quarantines that disrupt family schedules and a chance to get off of the merry-go-round of uncertainty driven by the pandemic.

“Leveling with people and addressing their concerns directly is the thing that really makes the difference,” he said. “If you want to help somebody get to the point of making a decision, what helps is having a personal conversation that gets into their actual fears and actual concerns.”