Earlier this year the West Coast saw a measles outbreak, another recurrence in a string of previously eradicated childhood illnesses. Stories of parents’ various objections to vaccination quickly flooded the news, underscoring the main question: who is responsible for these public health crises, families or the state? While some people may have been surprised or confused to see such illnesses return, Clare Huntington and Elizabeth Scott’s explanation of children’s health in a legal framework for The Future of Children provides valuable context.

The U.S. legal system, say Huntington and Scott, “gives parents the authority and responsibility to make decisions about their children’s health care, and favors parental rights over society’s collective responsibility to provide for children’s welfare” or, in the case of vaccination, overall public health. They call this a libertarian legal framework as a way to describe the legal context in which parents are permitted to make their own decisions about child health. There are exceptions, such as when a child’s life is in danger or when a child is in juvenile justice custody; however, since parental rights are constitutionally protected, a high standard of harm must be met before intervention can occur.

In public health cases such as vaccination, where can the line of “harm” be drawn? Currently, all healthy children are required to receive vaccinations in order to attend school. However, almost all states offer exemptions for religious beliefs and many also offer them for other philosophical convictions. The balance between the libertarian argument and public health theoretically rests on the understanding that those with strong beliefs both deserve their right to decide and are a small enough segment of the population that the overall public interest of immunity is still met. However the return of some childhood illnesses shows that this balance is no longer being maintained.

Now many states are tightening their exemption policies. For example, California (origin of the measles outbreak) is on the verge of eliminating philosophical exemptions. For some states, making these adjustments may be more difficult. As Huntingdon and Scott put it, “without an affirmative legal obligation to promote children’s [or public] health, governmental investment is optional.” In this context, public health policy is often reactive rather than proactive or preventative.

Recent shifts in both cultural and legal views of vaccination deliver an immediate and crucial example of the libertarian legal context for child health policy and its limits. To read further on current issues in children’s health, see our latest issue of The Future of Children, “Policies to Promote Child Health.”