Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in POLITICO, in “States Loosen Vaccine Rules — Even as Measles Outbreak Rages,” by Lauren Gardner.
Following is an excerpt:
The U.S. is on track to surpass 1,000 measles cases this year as the viral illness — once so rare that most young doctors don’t recognize the telltale rash — makes an alarming comeback.
The outbreak, which has spread to 29 states as of May 1 and claimed three lives, hasn’t stopped some local lawmakers from considering or implementing policies that could make it even easier for parents to opt out of school vaccination requirements for their children.
Idaho Gov. Brad Little signed into law last month an unprecedented ban on vaccine mandates for schools and businesses in the state, which already boasts the highest vaccine exemption rate for kindergarteners nationally.
On his first day in office, West Virginia Gov. Patrick Morrisey issued an executive order permitting religious exemptions from school and day care immunization requirements — a major shift in one of the few states that had only allowed medical exemptions previously.
And lawmakers in red states like Florida, Louisiana and Texas are weighing measures that would make it more difficult for health providers to deny care — from organ transplants to pediatric well visits — to people who aren’t vaccinated.
Those state efforts, alongside separate measures to limit or ban the use of messenger RNA vaccines like those developed for Covid, come amid longtime vaccine skeptic Robert F. Kennedy Jr.’s ascent to power in Washington as Health and Human Service secretary. But they’re hardly a new phenomenon — immunization coverage has declined nationally for kindergarteners since the 2019-20 school year — and their roots can be traced back to a group of moms in Texas. The Lone Star state has been the cradle of domestic vaccine resistance for the last decade and is now the epicenter of an exploding measles outbreak that could end the U.S.’s status as a country without sustained spread of the virus.
“The nation has caught up to Texas, because we have been dealing with this rhetoric and these little micromovements,” said Rekha Lakshmanan, chief strategy officer at The Immunization Partnership, which promotes vaccination in the state.
Rebecca Hardy founded Texans for Vaccine Choice in 2015 to lobby against legislation to end religious and philosophical exemptions in the state. Since then, the group’s clout has solidified, and more state lawmakers, predominantly Republicans, offer public support at events like its annual rally at the state Capitol building in Austin.
“A group of moms got together and basically said, ‘Not on our watch,’” Hardy said.
The social contract around vaccination — that individuals choose to get immunized to help protect their communities — in the U.S. is seemingly fraying as more parents survey social media to find pediatricians who won’t force them to vaccinate their children. Parents increasingly question why their providers recommend so many shots for their kids when they didn’t have to get anywhere near that number in the 1980s and 1990s.
Centers for Disease Control and Prevention data shows that national immunization coverage among kindergarteners in the 2023-24 school year dropped to 93 percent, with exemptions from at least one vaccine increasing to 3.3 percent of those students. Fourteen states reported exemptions above 5 percent.
That dip threatens herd immunity against highly contagious diseases, like measles and whooping cough, that demand coverage rates of at least 95 percent.
Measles was officially eliminated in the U.S. in 2000, but that designation is now in jeopardy. Measles is no longer considered eliminated if a chain of infections lasts for more than 12 months, which public health officials expect to happen because of this latest outbreak.
Public health experts fear that skepticism and the rising “medical freedom” movement — which has dovetailed with Kennedy’s “Make America Healthy Again” mantle — will lead to more cases of vaccine-preventable illnesses in children, many of which can cause serious complications and even death. Measles, they say, is the proverbial canary in the coal mine for other sinister but lesser-known illnesses, like whooping cough and Hib disease.
Some public health experts are now puzzling over who might be “trusted messengers” to promote vaccination as scientific institutions are falling out of favor.
“Right now, we’re losing trust in our institutions in general,” Dr. Seth Berkley, the former CEO of Gavi, a global vaccine alliance, said last month at a vaccine conference in Washington.
A first-in-the-nation move
The bill Little signed into law in early April prohibits Idaho schools and businesses from requiring a “medical intervention” — like a vaccine — as a condition for enrollment or employment. The measure, which goes into effect July 1, was tweaked by legislators after the governor vetoed an earlier iteration that he said would have hampered schools’ ability to send home children with communicable illnesses from measles to pink eye.
The legislation Little ultimately endorsed includes explicit references to sections of Idaho law permitting both school immunization requirements and exemptions, as well as allowing schools to keep students with contagious diseases out of class. Richard Hughes, a vaccine law expert at Epstein Becker Green who advised on the changes, said they leave intact Idaho’s existing infrastructure for mandates and exemptions.
But the law also references Idaho’s parental rights statute, making its full ramifications unclear. Hughes said he fears that, as a result, vaccine opponents could challenge any school that tries to keep its existing requirements intact.
The Health Freedom Defense Fund, the group that says it wrote the original Idaho bill, said in a statement days after passage that the law ensures “no Idahoan will ever again be compelled to undergo unwanted medical interventions as a condition of employment, education, or daily life.”
Louisiana lawmakers are scheduled to consider similar legislation this week in committee.
“It was definitely disappointing to see that pass in Idaho, just to know it can be used to set a precedent for potentially doing things like that in other states,” said Jennifer Herricks, founder of Louisiana Families for Vaccines.
While all 50 states permit medical exemptions to vaccine requirements, only five have prohibited exceptions on religious or personal grounds. But Morrisey in West Virginia has made his own move to overhaul the state’s longstanding policy of limiting vaccine exemptions to medical reasons.
Morrisey, a Republican, signed an executive order in January directing health officials to establish a process for residents to object to school or daycare immunization mandates on religious or conscientious grounds, citing a 2023 state religious protections law. But the state House rejected a Senate bill to codify his directive weeks before the legislature adjourned.
“I’m not a doctor — the experts that I rely upon absolutely are rock solid, rock solid, behind the fact that we need to be taking the vaccines,” GOP Sen. Jim Justice, Morrisey’s predecessor who vetoed an earlier attempt to loosen vaccine policies there, told POLITICO last month.
West Virginia’s public health agency says it’s still reviewing religious exemption requests. A webpage outlining its medical exemption process explains why — until the January order — the state didn’t grant them previously.
“Non-medical exemptions have been associated with increased occurrence of vaccine-preventable disease outbreaks originating in and spreading through schools,” the state website for the Office of Epidemiology and Prevention Services says.
