Montana considers new wave of legislation to loosen vaccination rules

Reviewed by Emily Henderson, B.Sc.Mar 10 2023

When Deb Horning's youngest daughter was 5, she got her measles, mumps, and rubella shot like many other kindergartners. But unlike many other moms, Horning had to stay away from her daughter for a week after the shot.

Horning, 51, was diagnosed in 2014 with acute myeloid leukemia, an aggressive cancer — the five-year survival rate for those older than 20 is 27%. Horning had been through chemotherapy and a stem cell transplant, which severely weakened her immune system. Because the MMR vaccine contains live virus, she couldn't get the vaccine herself and had to temporarily avoid her vaccinated daughter.

Now, Horning is worried about Montana legislation that could further compromise her and other immunocompromised people by making it easier for more people to opt out of routine vaccinations.

"If they do allow this, and a significant amount of people don't vaccinate their kids, then there could be community spread," Horning said. "And then I’m really in danger, the same as a newborn is in danger."

In 2021, Montana passed House Bill 702 — the first of its kind in the nation — which prohibited discrimination based on vaccine status in settings like employment, education, and health care. In effect, it banned private businesses and local governments from requiring employees to be vaccinated, not just against covid-19 but any disease. A federal judge ruled the law unconstitutional in health care settings in a lawsuit filed by hospitals, medical providers, and nurses. Two other lawsuits challenging HB 702, one by private businesses and another by tribal nations, are pending.

This year, lawmakers have introduced proposals to expand vaccine exemptions in schools and change criteria in the workplace and the legal system.

Proponents of the school-related measures include mothers advocating for their parental rights over whether to vaccinate their children; a nurse who maintained that medical choices should be private; and a day care instructor concerned about the connection between vaccines and autism, a claim that has been discredited.

Some experts say those bills, like HB 702 from two years ago, are an overreaction to the fear and anger surrounding the covid pandemic.

Those who promote vaccine exemptions on the grounds of parental rights and individual freedom should be honest about the consequences, said Cason Schmit, an assistant professor at Texas A&M University School of Public Health. Those consequences could include more people sick and dead from preventable diseases, he said.

"We know what the outcomes of these types of laws are," Schmit said.

According to a study published in 2019 in the Expert Review of Vaccines journal, nonmedical vaccine exemptions have increased over the past two decades in the U.S.

Medical exemptions for vaccines are granted for conditions that could result in adverse reactions to a vaccine, such as a cancer patient undergoing chemotherapy. The nonmedical type comprise religious — based on a sincerely held religious belief — and conscience exemptions — based on personal or moral beliefs.

According to Lauren Wilson, president of the Montana Chapter of the American Academy of Pediatrics, no state in the last 20 years has implemented a conscience exemption for childhood vaccines. The National Conference of State Legislatures reports philosophical exemptions in 15 states.

Currently, Montana allows exemptions based on religion but not conscience for K-12 school vaccinations, and the religious exemption must be provided on a notarized affidavit. A medical exemption must be signed by a licensed health care provider.

That would change under Senate Bill 450, sponsored by Republican Sen. Daniel Emrich, which would require schools, employers, health care providers, state agencies, and other entities to accept "without question or malice" religious or conscience exemptions pertaining to certain medications, including vaccines. Any entity that doesn't comply would lose state funding.

Religious or conscience exemptions could be used for any of the immunizations required in the Montana code: varicella, diphtheria, pertussis, tetanus, poliomyelitis, rubella, mumps, and measles for attendance in primary schools, and influenza B before starting preschool.

SB 450 also would remove the requirement that an exemption be given on a notarized affidavit and allows that a signed letter or statement is sufficient.

Supporters say SB 450 would preserve parental rights as well as the right to choose what goes into one's body, and provide a justification to refuse vaccination if someone is not particularly religious.

Opponents, including Montana Families for Vaccines, the Montana Medical Association, and Wilson, said states with conscience exemptions have the lowest vaccination rates.

"I think part of the problem is that vaccines have been victims of their own success," Wilson said. "There have been many childhood illnesses that have been eliminated for more than a generation, and people don't remember."

Another measure, House Bill 715, would require schools to inform parents which exemptions are available through whatever communication they already provide to students about vaccines. It initially added a conscience exemption for schools, too, but that was taken out of the bill.

Republican Rep. Jennifer Carlson, the sponsor of both HB 715 and 2021's HB 702, cast doubt on whether HB 715 would significantly affect vaccination rates. She said during a legislative hearing on Feb. 27 that the state has a 95%-97% vaccination rate despite its existing medical and religious exemptions.

In the 2018-19 school year, 96% of Montana's kindergartners were vaccinated against measles, mumps, and rubella, while 3% were excused under religious exemptions, according to the state's public health department. According to the Centers for Disease Control and Prevention, the share dropped to nearly 93% of Montana kindergartners in the 2020-21 school year.

Nationally, about 94% of kindergartners receive two recommended doses of MMR vaccine and 2% remain unvaccinated because of nonmedical exemptions.

Carlson emphasized that HB 715 wasn't about covid, and that she isn't opposed to vaccinations, saying at the hearing that she and her five children have all had their childhood vaccines.

"This bill is not a debate about the efficacy of vaccines," Carlson said.

Dr. Marian Kummer, a retired pediatrician and Montana Families for Vaccines board member, said she worries that if HB 715 and SB 450 become law, it will leave the state vulnerable.

"The fear is what's going to happen if they pass the personal exemption — the exemption rate will go up and that is going to put more communities at risk for outbreaks of these diseases," Kummer said.

To maintain immunity against measles, 95% of a population needs to be fully vaccinated — having both MMR shots — against the disease. Kummer said if there are more exemptions, the state could fall below that threshold.

The 2021 legislature passed a law that eliminated the requirement that vaccine rates be reported to Montana's Department of Public Health and Human Services and local health departments.

Democratic Rep. Ed Stafman has drafted a bill that would boost vaccine and exemption reporting. Stafman said that at some point there will be an increase in outbreaks because of increasing exemptions, and data will be crucial.

"When that outbreak happens here, we're going to be in deep trouble," Stafman said.

In the workplace, Senate Bill 369 would require workers' compensation insurance to cover adverse reactions to employer-mandated vaccines.

And in the courthouse, House Bill 684 would prohibit the use of vaccination status as evidence or grounds for decisions in guardianship or custody cases. It also would make it so vaccination status can't be used as a factor in determining criteria for adoption.

That bill's sponsor, Republican Rep. Caleb Hinkle, said including vaccination status in evidence could lead to biased decisions because of how politicized vaccinations have become.

But Schmit of Texas A&M said the measure could handicap judges' ability to rule what is in the best interests of a child.

Keely Larson is the KHN fellow for the UM Legislative News Service, a partnership of the University of Montana School of Journalism, the Montana Newspaper Association, and Kaiser Health News. Larson is a graduate student in environmental and natural resources journalism at the University of Montana.