1 Lenny Bernstein & Brady Dennis, Measles Outbreak Spreads to Three More States and Washington DC; 121 People Now Affected, Wash. Post (Feb. 9, 2015), http://www.washingtonpost.com/news/to-your-health/wp/2015/02/09/measles-outbreak-spreads-to-three-more-states-121-people-now-affected [http://perma.cc/Y6Y6-J294].

2 States with Religious and Philosophical Exemptions from School Immunization Requirements, Nat’l Conf. of State Legis. (Jan. 21, 2016), http://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx [http://perma.cc/AMC8-MAUR].

3 See, e.g., Blank, Nina R. et al., Exempting Schoolchildren From Immunizations: States With Few Barriers Had Highest Rates of Nonmedical Exemptions, 32 Health Aff. 1282, 1282, 1286, 1288 (2013)Google Scholar (noting how states can impose more stringent requirements to qualify for a vaccine exemption); Caplan, Arthur L. et al., Free to Choose but Liable for the Consequences: Should Non-Vaccinators Be Penalized for the Harm They Do?, 40 J. L. Med. & Ethics 606, 606, 608, 610 (2012)Google Scholar (discussing whether individuals who choose not to be vaccinated can be found liable under civil and criminal law if they cause another person to become ill).

4 California Department of Public Health Confirms Measles Cases, Cal. Dep’t of Pub. Health (Jan. 7, 2015), http://www.cdph.ca.gov/Pages/NR15-002.aspx [http://perma.cc/FU9T-EF54].

5 Id.; Christina Cocca, 9 Measles Cases Linked to Disneyland, NBC S. Cal. (Jan. 7, 2015, 12:48 PM), http://www.nbclosangeles.com/news/local/Measles-Cases-Disneyland-Disney-California-Adventure-Park-Orange-County-287830571.html [http://perma.cc/UG3H-GD9M] (noting that in the California case, two children were too young to get vaccinated).

6 Bernstein & Dennis, supra note 1.

7 Tracy Seipel & Jessica Calefati, California Vaccine Bill SB 277 Signed Into Law by Jerry Brown, San Jose Mercury News (June 30, 2015, 9:59 AM), http://www.mercurynews.com/health/ci_28407108/gov-jerry-brown-signs-californias-new-vaccine-bill [http://perma.cc/8RTS-CGEK].

8 Jason M. Breslow & Chris Amico, What Are the Vaccine Exemption Laws in Your State?, Frontline (Mar. 24, 2015), http://www.pbs.org/wgbh/frontline/article/what-are-the-vaccine-exemption-laws-in-your-state/ [http://perma.cc/H39T-UZGD].

9 See, e.g., DeStefano, Frank, Vaccines and Autism: Evidence Does Not Support a Causal Association, 82 Clinical Pharmacology & Therapeutics 756, 758 (2007)Google Scholar; Gerber, Jeffrey S. & Offit, Paul A., Vaccines and Autism: A Tale of Shifting Hypotheses, 48 Clinical Infectious Diseases 456 (2009)Google Scholar (providing overview of studies that have failed to find a link between vaccines and autism); Nkowane, Benjamin M. et al., Vaccine-Associated Paralytic Poliomyelitis: United States: 1973 Through 1984, 257 JAMA 1335, 1335 (1987)Google Scholar (finding that seventy-six percent of paralytic poliomyelitis cases reported in the United States were vaccine associated).

10 Abby Phillip, Mom Arrested After Allegedly Kidnapping Her Own Daughter to Avoid Vaccination, Wash. Post (Aug. 4, 2015), http://www.washingtonpost.com/news/morning-mix/wp/2015/08/03/anti-vaxxer-mom-arrested-after-allegedly-kidnapping-now-3-year-old-daughter [http://perma.cc/N2T6-JYA6].

11 See, e.g., Maggie Fox, Don’t Call Them Dumb: Experts on Fighting the Anti-Vaccine Movement, NBC News (Feb. 3, 2015, 3:21 PM), http://www.nbcnews.com/storyline/measles-outbreak/dont-call-them-dumb-experts-fighting-anti-vaccine-movement-n298956 [http://perma.cc/8L2F-4GHD].

12 See Stern, Alexandra Minna & Markel, Howard, The History Of Vaccines And Immunization: Familiar Patterns, New Challenges, 24 Health Aff. 611, 611-12 (2005)Google Scholar (noting that vaccines have been developed in order to prevent the spread of disease, but “the story is more complicated than it might appear at first glance” because “[t]he historical record shows that the development of vaccines has consistently involved sizable doses of ingenuity, political skill, and irreproachable scientific methods”).

13 Perry, Robert T. & Halsey, Neal A., The Clinical Significance of Measles: A Review, 189 J. Infectious Diseases S4, S4–S5 (2004)Google Scholar.

14 Moss, William J. & Griffin, Diane E., Measles, 379 Lancet 153, 156 (2012)Google Scholar.

15 U.S. Ctrs. For Disease Control & Prevention [CDC], Measles and the Vaccine (Shot) to Prevent It 1-2 (2015), http://www.cdc.gov/vaccines/vpd-vac/measles/fs-parents.html [http://perma.cc/9AVX-7KL6].

16 CDC, Measles Vaccination, http://www.cdc.gov/measles/vaccination.html [http://perma.cc/39C4-77X3] (last updated July 1, 2015).

17 See Langmuir, Alexander D., Medical Importance of Measles, 103 Am. J. Diseases Child. 224, 225 (1962)Google Scholar; Snyder, Merrill J. et al., Observations on the Seroepidemiology of Measles, 103 Am. J. Diseases Child. 250, 250 (1962)Google Scholar.

18 Papania, Mark J. et al., Elimination of Endemic Measles, Rubella, and Congenital Rubella Syndrome From the Western Hemisphere: The US Experience, 168 JAMA Pediatrics 148, 149 (2014)Google Scholar.

19 CDC, Measles United States, January 1 – August 24, 2013, 62 Morbidity & Mortality Wkly. Rep. 733, 741 (2013)Google Scholar.

20 Id.

21 CDC, supra note 15.

22 Immunization Coverage: Fact Sheet No. 378, World Health Org., http://www.who.int/mediacentre/factsheets/fs378/en [http://perma.cc/2BVE-FJQH] (last updated Sept. 2015).

23 See CDC, Ten Great Public Health Achievements–United States, 1900-1999, 48 Morbidity & Mortal Wkly. Rep. 241, 241 (1999)Google Scholar; McCullers, Jonathan A. & Dunn, Jeffrey D., Advances in Vaccine Technology and Their Impact on Managed Care, 33 Pharmacy & Therapeutics (2008) 35, 35Google Scholar; Pollard, Andrew J., Childhood Immunisation: What is the Future? 92 Archives Disease Childhood 426, 428 (2007)Google Scholar.

24 See Stephanie Alden, Vaccines and the Immune System: The Ultimate Protection, Dartmouth Undergraduate J. Sci. (Nov. 19, 2013), http://dujs.dartmouth.edu/2013/11/vaccines-and-the-immune-system-the-ultimate-protection/#.VtSd7pMrLq0 [http://perma.cc/N69E-5HPJ]; Top 20 Questions about Vaccination, C. of Physicians of Phila., http://www.historyofvaccines.org/content/articles/top-20-questions-about-vaccination [http://perma.cc/P4ET-2K9E].

25 Nat’l Inst. Allergy & Infectious Disease, U.S. Dep’t Health & Human Servs., Understanding Vaccines: What they Are, How they Work 5 (2008).

26 Dennis K. Flaherty, Immunology For Pharmacy 198 (2012).

27 Id.

28 See id.; Nat’l Inst. Allergy & Infectious Diseases, Community Immunity (“Herd Immunity”), Vaccines.gov, http://www.vaccines.gov/basics/protection/ [http://perma.cc/PN7D-JVQN] (last updated Mar. 3, 2016); Emily Willingham & Laura Helft, What is Herd Immunity? NOVA (Sept. 5, 2014), http://www.pbs.org/wgbh/nova/body/herd-immunity.html [http://perma.cc/XK6K-MZQ2].

29 See Transcript for CDC Telebriefing: Measles in the United States, 2015, CDC (Jan. 29, 2015), http://www.cdc.gov/media/releases/2015/t0129-measles.html [http://perma.cc/7V5F-XD98]; see generally Moss & Griffin, supra note 14.

30 See supra notes 25-27 and accompanying text.

31 May, Thomas & Silverman, Ross D., ‘Clustering of Exemptions’ as a Collective Action Threat to Herd Immunity, 21 Vaccine 1048, 1050 (2003)Google Scholar.

32 See, e.g., Omer, Saad B. et al., Geographic Clustering of Nonmedical Exemptions to School Immunization Requirements and Associations With Geographic Clustering of Pertussis, 168 Am. J. Epidemiology 1389, 1394 (2008)Google Scholar (“There was considerable overlap between the clusters of exemptions and the clusters of pertussis cases.”).

33 See Greenough, Paul, Intimidation, Coercion and Resistance in the Final Stages of the South Asian Smallpox Eradication Campaign, 1973–1975, 41 Soc. Sci. & Med. 633, 636 (1995)Google Scholar.

34 See Caplan, Arthur L. et al., Free to Choose but Liable for the Consequences: Should Non-vaccinators Be Penalized for the Harm They Do? 40 J. L., Med. & Ethics 606, 608-10 (2012)Google Scholar.

35 See Scott Neuman, Australia to Stop Payments to Families Who Refuse Child Vaccinations, NPR, http://www.npr.org/sections/thetwo-way/2015/04/12/399145143/australia-to-stop-payments-to-families-who-refuse-child-vaccinations (last updated Apr. 14, 2015, 1:25 PM).

36 Jared P. Cole & Kathleen S. Swendiman, Cong. Research Serv., Mandatory Vaccinations: Precedent and Current Laws 2, 9, 11 (2014).

37 Blank, Nina R. et al., Exempting Schoolchildren From Immunizations: States with Few Barriers Had Highest Rates of Nonmedical Exemptions, 32 Health Aff. 1282, 1287-89 (2013)Google Scholar.

38 States with Religious and Philosophical Exemptions from School Immunization Requirements, Nat’l. Conf. State Legis. (Jan. 21, 2016), http://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx [http://perma.cc/GEA5-FWKJ].

39 See the summary on NVICadvocacy.org: 19 states introduced legislation re: exemptions, 5 passed. In New York Bill S6017-2015 would repeal all nonmedical exemptions. Vermont has repealed philosophical exemption while preserving religious exemption. In Connecticut, where religious exemption had been achieved simply by filing a form, HB 6949 PA-15-174 would force all religious exemptions to be notarized and require parents to watch state-sanctioned instructional material regarding risks of non-vaccination to the child and others. These requirements must be fulfilled prior to entrance into kindergarten and again annually. See Nat’l Vaccine Info. Ctr., NVIC Advocacy Portal (2015), https://nvicadvocacy.org/members/Home.aspx.

40 Jacobson v. Massachusetts, 197 U.S. 11, 37-39 (1905); see Mariner, Wendy K. et al., Jacobson v Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law, 95 Am. J. Pub. Health 581, 581 (2005)Google Scholar.

41 Toward a Twenty-First-Century Jacobson v. Massachusetts, 121 Harv. L. Rev. 1820, 1820, 1822 (2008).

42 Hodge, James G. & Gostin, Lawrence O., School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 Ky. L. J. 831, 857-58 (2001)Google Scholar.

43 Mariner et al., supra note 40, at 583-84; Orenstein, Daniel G. & Tony Yang, Y., From Beginning to End: The Importance of Evidence-Based Policymaking in Vaccination Mandates, 43 J. L. Med. & Ethics 99 (2015)Google Scholar.

44 See States with Religious and Philosophical Exemptions from School Immunization Requirements, supra note 38 (nothing that California’s law goes into effect July 1, 2016).

45 Adam Nagourney, California Mandates Vaccines for Schoolchildren, N.Y. Times (June 30, 2015), http://www.nytimes.com/2015/07/01/us/california-mandates-vaccines-for-schoolchildren.html?_r=1.

46 See Hohfeld, Wesley Newcomb, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L. J. 710, 716-17 (1917)Google Scholar.

47 Calandrillo, Steve P., Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children? 37 U. Mich. J. L. Reform 353, 353 (2004)Google Scholar.

48 David Bradford, W. and Mandich, Anne, Some State Vaccination Laws Contribute to Greater Exemption Rates and Disease Outbreaks in the United States, 34 Health Aff. 1383, 1384 (2015).Google Scholar

49 Wang, Eileen et al., Nonmedical Exemptions From School Immunization Requirements: A Systematic Review, 104 Am. J. Pub. Health e62, e64 (2014)Google Scholar.

50 Id.

51 Blank, supra note 3, at 1282, 1286.

52 Wang et al., supra note 49, at e81.

53 See Blank, supra note 3, at 1288; Gostin, Lawrence O., Law, Ethics, and Public Health in the Vaccination Debates: Politics of the Measles Outbreak, 313 JAMA 1099, 1099 (2015)Google Scholar; Saad B. Omer, How to Handle the Vaccine Skeptics, N.Y. Times (Feb. 6, 2015), http://www.nytimes.com/2015/02/06/opinion/how-to-handle-the-vaccine-skeptics.html.

54 Buttenheim, Alison et al., Exposure of California Kindergartners to Students with Personal Belief Exemptions from Mandated School Entry Vaccinations, 102 Am. J. Pub. Health e59, e61–e63 (2012)Google Scholar.

55 Birnbaum, Michael S. et al., Correlates of High Vaccination Exemption Rates Among Kindergartens, 31 Vaccine 750, 753 (2013)Google Scholar.

56 Gust, Deborah A. et al., Parents with Doubts about Vaccines: Which Vaccines and Reasons Why, 122 Pediatrics 718, 720-22 (2008)Google Scholar.

57 Papania et al., supra note 18, at 148.

58 Bradford and Mandich, supra note 48, at 1383.

59 CDC, Update: Measles—United States, January-July 2008, 300 Morbidity & Mortality Wkly. Rep. 2111, 2111 (2008).Google Scholar

60 Salmon, Daniel A. et al., Health Consequences of Religious and Philosophical Exemptions from Immunization Laws: Individual and Societal Risk of Measles, 281 JAMA 47, 47, 49 (1999)Google Scholar.

61 CDC, Measles Cases and Outbreaks, (Feb. 10, 2016), http://www.cdc.gov/measles/cases-outbreaks.html [http://perma.cc/LRV9-L4TR].

62 See Bernstein & Dennis, supra note 1.

63 Bradford & Mandich, supra note 48, at 1383.

64 News Release, Wash Dept. of Health, Measles Led to Death of Clallam Co. Woman; First in U.S. in a Dozen Years (July 2, 2015), http://www.doh.wa.gov/Newsroom/2015NewsReleases/15119WAMeaslesRelatedDeath [http://perma.cc/B9EL-D4CV].

65 Caplan et al., supra note 3, at 610.

66 See Gostin, supra note 53, at 1100; Omer, supra note 53.

67 See Dawson, Angus, Herd Protection as a Public Good: Vaccination and our Obligations to Others, in Ethics, Prevention, and Public Health 160, 163 (2007)Google Scholar; Dawson, Angus, The Determination of “Best Interests” in Relation to Childhood Vaccinations, 19 Bioethics 188, 189 (2005)Google Scholar; Dawson, Angus, The Moral Case for the Routine Vaccination of Children in Developed and Developing Countries, 30 Health Aff. 1029, 1030 (2011)Google Scholar.

68 See Field, Robert I. & Caplan, Arthur L., Evidence-based Decision Making for Vaccines: The Need for an Ethical Foundation, 30 Vaccine 1009, 1009 (2012)Google Scholar; Shapiro, Michael H., Updating Constitutional Doctrine: An Extended Response to the Critique of Compulsory Vaccination, 12 YALE J. Health Pol'y L. & Ethics 87 (2012)Google Scholar.

69 Flanigan, Jessica, A Defense of Compulsory Vaccination, 26 HEC Forum 5, 6 (2014)Google Scholar.

70 See Bradley, P., Should Childhood Immunisation Be Compulsory?, 25 J. Med. Ethics 330, 331-32 (1999)Google Scholar; Colgrove, James, The Ethics and Politics of Compulsory HPV Vaccination, 355 New Eng. J. Med. 2389, 2389-90 (2006)Google Scholar.

71 Zimmerman, Richard K., Ethical Analysis of HPV Vaccine Policy Options, 24 Vaccine 4812, 4815 (2006)Google Scholar.

72 Dickens, Bernard, The Art of Medicine: Conscientious Commitment, 371 Lancet 1240, 1241 (2008)Google Scholar.

73 Colgrove, supra note 70, at 2389; Eyal, Nir & Gosseries, Axel, Obamacare and Conscientious Objection: Some Introductory Thoughts, 20 Ethical Persp. 109, 110 (2013)Google Scholar.

74 Dickens, Bernard M., Legal Protection and Limits of Conscientious Objection: When Conscientious Objection is Unethical, 28 Med. & L. 337, 337, 344-45 (2009)Google Scholar; Fenton, Elizabeth, Conscience and Health, 20 Ethical Persp. 132, 133 (2013)Google Scholar; Law, Sylvia, Human Papillomavirus Vaccination, Private Choice, and Public Health, 41 U.C. Davis L. Rev. 1731, 1741 (2008)Google Scholar (“Unless there are alternative means of avoiding HPV and cancer, the cost of ‘wait and see’ is death for many women and a painful struggle with cancer for many more.”); Wicclair, Mark R., Conscientious Objection in Medicine, 14 Bioethics 205, 225 (2000)Google Scholar.

75 See e.g., Dickens supra note 74, at 337, 344-45.

76 See Taurek, John M., Should the Numbers Count? 6 Phil. & Pub. Aff. 293 (1977)Google Scholar.

77 See supra notes 25-27, 30 and accompanying text.

78 Id.

79 See Robert Nozick, Anarchy, State, and Utopia 34-35 (1974); Thomson, Judith Jarvis, A Defense of Abortion, 1 Phil. & Pub. Aff. 47, 52 (1971)Google Scholar.

80 See generally Wilson, Arthur Jess, Law and Precedent, 5 Mont. L. Rev. 53 (1944)Google Scholar (describing the legal system’s reliance on precedence).

81 Whitney, Cynthia G. et al., Benefits from Immunization During the Vaccines for Children Program Era – United States, 1994-2013, 63 CDC Morbidity & Mortality Wkly. Rep. 352, 354 (Apr. 25, 2014)Google Scholar (“After accounting for $107 billion and $121 billion in direct and societal costs of routine childhood immunization, respectively, the net present values (net savings) of routine childhood immunization from the payers’ and societal perspectives were $295 billion and $1.38 trillion, respectively.”).

82 Update: Vaccine Side Effects, Adverse Reactions, Contraindications, and Precautions: Recommendations of the Advisory Committee on Immunization Practices (ACIP), CDC Morbidity & Mortality Wkly. Rep. Recommendations & Reps., Sept. 6, 1996, at 1, 2.

83 E.g., Thomas Scanlon, What We Owe to Each Other 82 (1998)

84 Weigong Zhou et al., Surveillance for Safety After Immunization: Vaccine Adverse Event Reporting System (VAERS) – United States, 1991-2001, CDC Morbidity & Mortality Wkly. Rep. Surveillance Summaries, Jan. 24, 2003, at 1, 2.

85 See generally Gerald J. Forbes et al., Fed. Highway Admin., FHWA-SA-12-004, Methods and Practices for Setting Speed Limits: An Informational Report (2012) (describing methodologies used to establish speed limits).

86 See generally Diane Stern, Study: Stricter Driving Laws for Teens Help Prevent Drowsy Driving Crashes, CBS Bos. (June 9, 2015, 8:46 AM), http://boston.cbslocal.com/2015/06/09/study-stricter-driving-laws-for-teens-help-prevent-drowsy-driving-crashes/ [http://perma.cc/3SRA-SLTC].

87 In a 1982 decision, the Supreme Court of the United States unanimously held that requiring an Old Order Amish employer to pay social security taxes did not violate the Free Exercise Clause. United States v. Lee, 455 U.S. 252, 252 (1981) (“The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.”). The employer had argued that “the Amish religion not only prohibits the acceptance of social security benefits, but also bars all contributions by Amish to the social security system.” Id. at 255. Chief Justice Burger responded in the Court’s opinion, “To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good.” Id. at 259. One could thus argue a fortiori that the state could justify vaccine mandates in order to accomplish a governmental interest that benefits the common good: continued herd immunity.

88 See Adam Nagourney & Abby Goodnough, Measles Cases Linked to Disneyland Rise, and Debate Over Vaccinations Intensifies, N.Y. Times, Jan. 22, 2015, at A13, for a recent example of a disease outbreak at an amusement park and a push for stricter policy to prevent outbreaks at schools.

89 See, e.g., 149 Cong. Rec. E1011-30 (daily ed. May 21, 2003) (statement of Hon. Dan Burton) (presenting a report by the Subcommittee on Human Rights and Wellness, Committee on Government Reform regarding the use of ethylmercury in vaccines); Gangarosa, E. J. et al., Impact of Anti-Vaccine Movements on Pertussis Control: The Untold Story, 351 Lancet 356, 358-59 (1998)Google Scholar (noting examples in the Soviet Union and Australia where public statements about vaccine ineffectiveness led to the decrease in parents’ and doctors’ confidence in vaccines).

90 See, e.g., Maher, Daniel P., Vaccines, Abortion, and Moral Coherence, 2 Nat’l Cath. Bioethics Q. 51, 55 (2002)Google Scholar (“Quite apart from the health benefits and risks associated with using or not using vaccines, some people oppose the use of certain common vaccines … because of the connection between the production of these vaccines and elective abortion.”); Donald G. McNeil, Jr., Worship Optional: Joining a Church to Avoid Vaccines, N.Y. Times, Jan. 14, 2003, at F1.

91 See, e.g., Nicholas Kristof, The Dangers of Vaccine Denial, N.Y. Times, Feb. 8, 2015, at SR1. Evidence of vaccine safety does not address some of the religious concerns regarding the use of fetal stem cells in certain vaccine development. See, e.g., U.S. Food & Drug Admin., Package Insert – Measles, Mumps, and Rubella Virus Vaccine Live (2015) (noting that the live rubella virus used in the vaccine is grown in a cell line derived from fetal lung tissue).

92 Vaccine Safety: What You Should Know, Ctrs. for Disease Control & Prevention (Aug. 4, 2010), http://www.cdc.gov/features/vaccinesafety/ [http://perma.cc/375V-VY5M].

93 Adam Liptak, Court Rules for a Mistaken Police Officer, N.Y. Times (Dec. 15, 2014), http://www.nytimes.com/2014/12/16/us/politics/justices-find-no-rights-violation-in-officers-misreading-of-law.html?_r=0 (citing Chief Justice Roberts’ belief that “ignorance of the law is no excuse.”).

94 See generally Kass, Nancy E., An Ethics Framework for Public Health, 91 Am. J. Pub. Health 1776, 1779-80 (2001)Google Scholar (describing an ethical framework for implementing public health programs which involves identifying and minimizing potential burdens such as risks to privacy, liberty and justice).

95 See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2622 (2012) (“An individual who opts not to purchase insurance from a private insurer can be seen as actively selecting another form of insurance: self-insurance.”).

96 F. M. Kamm, Morality, Mortality Volume II: Rights, Duties, and Status 196 (2001).

97 J.J.C. Smart & Bernard Williams, Utilitarianism: For & Against 82-86 (1973).

98 John Stuart Mill, On Liberty 26-28 (4th ed. 1869).

99 Nadeau, Jessica A. et al., Vaccinating My Way—Use of Alternative Vaccination Schedules in New York State, 166 J. Pediatrics 151, 151 (2015)Google Scholar. But see, Kiera Butler, My Interview With a Pediatrician Who Thinks Vaccines Are “Messing With Nature”, Mother Jones (Mar. 30, 2014, 9:00 PM), http://www.motherjones.com/environment/2014/03/pediatrician-believes-vaccines-are-messing-nature [http://perma.cc/QP2M-3UXM] (“The state of California, meanwhile, makes it relatively easy to opt out of vaccines: Parents are not required to follow the federally recommended schedule, and those who wish to skip shots entirely need only obtain the signature of their child's pediatrician.”).

100 See, e.g., N.J. Dep’t of Health and Senior Servs., N.J.A.C. 8:57-4.3 and 4.4 Immunization of Pupils in Schools Rule, Religious and Medical Exemption (Dec. 1, 2008) (explaining that parents who want to exempt their child from the state mandated vaccination should either submit a written statement of religious belief or a written statement of medical contraindication).

101 One illustration is Bernard Williams’s well-known example of Jim and the Indians. See, e.g., Smart & Williams, supra note 98, at 98-100. In this illustration, Jim is presented with a situation where a group of Indians are about to be killed by a local military officer. Id. The officer offers Jim a choice: either Jim can kill one Indian and the officer would pardon the rest, or if Jim elects not to kill anyone, the officer will kill the entire group. Id. Though imposed, the option of shooting is regularly understood as active for Jim. Id.

102 Cf. Brock, Dan W., A Critique of Three Objections to Physician-Assisted Suicide, 109 Ethics 519, 524 (1999)Google Scholar (discussing whether physician-assisted suicide is contrary to a patient’s well-being); Flanigan, Jessica, Three Arguments Against Prescription Requirements, 38 J. Med. Ethics 579 (2012)Google Scholar (discussing how the paternalistic nature of prescription drug laws violates a patient’s right to self-medicate).

103 See generally Kenyon, Griffin C., A Dangerous Situation – The Knowing Transmission of HIV in an Out-of-Body Form and Whether New York Should Criminally Punish Those Who Commit Such an Act, 35 Pace L. Rev. 785, 798 (2014)Google Scholar (providing a review of state laws that criminalize acts associated with HIV infection and pointing out that “jurisdictions have enacted statutory provisions, which impose criminal liability upon defendants who knowingly transmit HIV to another”).

104 See Flanigan, supra note 69, at 7-8.

105 Rachels, James, Active and Passive Euthanasia, 292 New Eng. J. Med. 78, 78 (1975)Google Scholar.

106 Model Penal Code § 2.01(3) (Am. Law Inst., 1962).

107 See Diekema, Douglas S., Choices Should Have Consequences: Failure to Vaccinate, Harm to Others, and Civil Liability, 107 Mich. L. Rev. First Impressions 90, 92–93 (2009)Google Scholar.

108 Model Penal Code § 2.01(3) (Am. Law Inst., 1962).

109 See Hohfeld, supra note 46.

110 See supra note 78 and accompanying text.

111 But see Bridget Bentz Sizer, Homeschooling: Tips for Getting Started, PBS Parents, http://www.pbs.org/parents/education/homeschooling/homeschooling-tips-for-getting-started/ [http://perma.cc/5EZ7-K57V] (noting that while every state permits parents to homeschool their children, each state has different requirements before parents may do so).

112 Cf. David Hume, Of the Original Contract (1752), reprinted in Social Contract: Essays by Locke, Hume, and Rousseau 145, 156 (photo. reprint 1977) (1947) (failing to jump off of a ship in the middle of the sea cannot count as tacit consent to the ship’s governing laws).

113 For a similar idea, see Kelly, Michael B., Defendant’s Responsibility to Minimize Plaintiff’s Loss: A Curious Exception to the Avoidable Consequences Doctrine, 47 S.C. L. Rev. 391 (1996)Google Scholar.

114 Nozick, supra note 79, at 34.

115 Id.

116 Id.

117 See generally Engle, Eric, Aristotle and The Philosophy of Law: Theory, Practice and Justice in Aristotle and The Philosophy of Law: Theory, Practice and Justice 265, 265 (2013)Google Scholar (“[P]ropos[ing] a brief history of the concept of proportionality in law in order to understand the rule … that state action must be a rational means to a permissible end which does not invade protected human rights unless strictly compelled by necessity.”); Clark, Michael, Self-defense Against the Innocent, 17 J. Applied Phil. 145 (2000)Google Scholar (arguing that harming or even killing another in self-defense may be justified under certain dire and life-threatening circumstances); Lazar, Seth, Responsibility, Risk, and Killing in Self-Defense, 119 Ethics 699, 700 (2009)Google Scholar (explaining the “reasons” that “might persuade a potential combatant that he will not breach duties of justice to those he kills in war”).

118 See Baker, Tom, Risk, Insurance, and the Social Construction of Responsibility, in Embracing Risk: The Changing Culture of Insurance and Responsibility 33 (2002)Google Scholar; Zimmerman, Michael J., Moral Responsibility and Ignorance, 107 Ethics 410, 412 (1997)Google Scholar.

119 See Hentoff, Tom, Note, Speech, Harm, and Self-Government: Understanding the Ambit of the Clear and Present Danger Test, 91 Colum. L. Rev. 1453, 1455 (1991)Google Scholar (consequences must be both “immediate” and “grave” in order for speech to be restricted).

120 Claire McCarthy, The Real Dangers of Not Getting Vaccinated, Boston.com (Sept. 30, 2013, 10:42 AM), http://www.boston.com/lifestyle/health/mdmama/2013/09/the_real_dangers_of_not_getting_vaccines.html [http://perma.cc/C9SR-WEEH] (noting that the danger from non-vaccination is held at bay until herd immunity breaks down).

121 U.S. Dep’t of Health & Human Servs., supra note 25, at 18-19 (cells must go through the process of “fighting” the microbe in the vaccine before the body becomes immune to the disease).

122 Id. (explaining that vaccination permanently alters your immune system).

123 Gerald Dworkin, The Theory and Practice of Autonomy 113 (1988).

124 Dworkin, Ronald, Comment on Narveson: In Defence of Equality, 1 Soc. Phil. Pol’y 24 (1983)Google Scholar.

125 Id.

126 Id.

127 C.f. Model Penal Code §213.0 (2015) (all “sexual offenses” require penetration).

128 See Stratton, Kathleen R. et al., Adverse Events Associated with Childhood Vaccines Other Than Pertussis and Rubella: Summary of a Report from the Institute of Medicine, 271 JAMA 1602, 1605 (1994)Google Scholar (finding the possibility of “vaccine-related adverse events” but also that the occurrence would be very rare and the information on the issue come “predominantly from uncontrolled studies and case reports”).

129 U.S. Dep’t of Health & Human Servs., supra note 25, at 4-5,

130 Mill, supra note 99, at 80.

131 Chafee, Zechariah Jr., Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919)Google Scholar (“Your right to swing your arms ends just where the other man’s nose begins.”).

132 Gostin, supra note 53, at 1100. In fact, far from violating informed consent and autonomy, there is a (admittedly convoluted) way in which forced vaccination protects informed consent and autonomy. Informed consent occurs when a competent individual consents to an action or intervention after being informed of the consequences and expected outcomes of the action or intervention. Informed consent is often understood to rest on the ethical principle that every individual has a basic right to be autonomous in deciding what happens in and to her own body, and a right to personal integrity. Studer, Martin R., The Doctrine of Informed Consent: Protecting the Patient’s Right to Make Informed Health Care Decisions, 48 Mont. L. Rev. 85, 87 (1987)Google Scholar. When herd immunity is not achieved, pathogens may enter into the bodies of unwilling others, who never consented, and rationally would not consent, to this intrusion. In this way, refusal of vaccination is in tension with the doctrine of informed consent and the value of personal autonomy. Even if the profound impact were beneficial, and no medical harm were involved, there might be reasonable autonomy over one’s body to thwart the intervention. By analogy, suppose that unless A takes an action that is costless enough to perform, her sheer reflex would remain to pat stranger B’s back. Although patting is medically not harmful, the intuition is that A should take that action and avoid nonconsensual patting, as a matter of respect for B’s personal autonomy.

133 Scott, Elizabeth S., Parental Autonomy and Children’s Welfare, 11 Wm. & Mary Bill Rts. J. 1071, 1072 (2003)Google Scholar (“[T]he relationship of parent and child has a lot in common at a deep structural level with those of fiduciaries and principals in other legal contexts, and that, to a considerable extent, the regulation of the parent-child relationship conforms to a fiduciary model.”).

134 See Phillip, supra note 10.

135 See generally Samantha|Brennan & Noggle, Robert, The Moral Status of Children: Children’s Rights, Parents’ Rights, and Family Justice, 23 Soc. Theory & Prac. 1, 22 (1997)Google Scholar (presenting arguments that children are not commodities and have individual rights that parents cannot touch).

136 Guichon, Juliet & Mitchell, Ian, Medical Emergencies in Children of Orthodox Jehovah’s Witness Families: Three Recent Legal Cases, Ethical Issues and Proposals for Management, 11 Pediatrics & Child Health 655 (2006)Google Scholar.

137 See, e.g., Prince v. Massachusetts, 321 U.S. 158, 170 (1944).

138 Id.

139 Johnson, Vincent R. & Hargrove, Claire G., The Tort Duty of Parents to Protect Minor Children, 51 Vill. L. Rev. 311, 312 (2006)Google Scholar.

140 Id.

141 Id.

142 van Delden, J.J.M. et al., The Ethics of Mandatory Vaccination Against Influenza for Health Care Workers, 26 Vaccine 5562, 5564 (2008)Google Scholar.

143 Brighthouse, Harry & Swift, Adam, Legitimate Parental Partiality, 37 Phil. & Pub. Aff. 43, 62, 68 (2009)Google Scholar.

144 See generally Plotkin, Stanley A. & Plotkin, Susan L., The Development of Vaccines: How the Past Led to the Future, 9 Nat. Revs. Microbiology 889 (2011)Google Scholar (describing the development of vaccines).

145 Stratton et al., supra note 129, at 1605.

146 See Gostin, supra note 53; Omer et al., supra note 32, at 1395.

147 See Greenough, supra note 14; Mariner, supra note 40, at 588.

148 Taylor-Clark, Kalahn et al., Confidence in Crisis? Understanding Trust in Government and Public Attitudes Toward Mandatory State Health Powers, 3 Biosecurity & Bioterrorism 138, 143 (2005)Google Scholar.

149 See generally Omer et al., supra note 32 (discussing school admission).