Vaccination laws and protection of the public health.
There are virtually no vaccination laws on the books at the federal level that require vaccinations. Even so, every state has vaccination laws, and they are more similar to each other than dissimilar. All vaccination laws have the same goal in mind: protection of ourselves and others from preventable diseases.
I have a wonderful infectious disease specialist who, in addition to treating my HIV practically blocks the exits before vaccinating me for influenza. He also typically recommends a whole host of additional vaccines to me and his other HIV+ patients. During my last visit in August, with the school season having just started, we discussed the anti-vaccination movement from a public health standpoint. The public health arguments for vaccination are compelling enough for most people that no legal analysis is required: we all want to do our part to protect public heath, and we especially want to do our part to protect ourselves and our children.
But, “Dammit, Jim! I’m a lawyer not a doctor!” And so I began to think about vaccination laws and the legal obligations we have toward ourselves, our children, and others.
The public health case for vaccinations.
When we (or at least, I) think of the public health case for vaccinations, poliomyelitis (polio) jumps right to the top of the list of reasons to vaccinate. This deadly disease, all but eradicated in the western world, conjures images of paralyzed children housed in polio wards awaiting death. The disease is highly infectious, and before 1955, was a constant worry for parents of young children. Jonas Salk developed the first vaccine, which has nearly eradicated the illness in the western world. The polio vaccine is now one of the Centers for Disease Control’s recommended vaccines, and it has been administered to nearly every person living in the United States. For a fantastic timeline of polio and the development of the vaccine, click here.
And polio is just the start. The list of preventable illnesses includes measles, mumps, rubella, both hepatitis A and B, and many, many others. The Centers for Disease Control publishes a list of recommended vaccinations against preventable illnesses, which nearly every state refers to when crafting vaccination laws.
But who even needs vaccination laws with a success story like that?
The anti-vaccination movement.
Unfortunately, quite a few of us appear to need vaccination laws to compel parents to vaccinate their children. An anti-vaccination movement currently exists in the United States and urges parents to avoid injecting their children with toxins (and it is a movement, despite Jenny McCarthy’s protestations to the contrary). Even President Trump appeared to lend credibility to the movement earlier this year when he encouraged the then-raging debate in the Texas Legislature regarding vaccination requirements. The concern, apparently, is that inactive ingredients in the vaccines, or the immune-activating component itself, may harm us or our children.
The current anti-vaccination hysteria lurking in certain corners of the United States is actually not the first time that activists have united to stand against common sense and reason. For some reason or another, activists have challenged nearly every vaccine, despite their successes at eliminating preventable illnesses. For another fantastic history of anti-vaccination movements, click here.
Even with a complete lack of medical or scientific support, these movements persist. And because those movements persist, we turn to the government (federal, local, and state) for vaccination laws that compel compliance, rather than suggest it.
There is no federal law requiring childhood vaccination, so the States have passed vaccination laws.
It may therefore be surprising that the federal government has largely ignored this controversy, leaving it to the states to implement appropriate vaccination laws. Fortunately, states have stepped up, and every state and the District of Columbia has enacted a comprehensive set of vaccination laws aimed at protecting ourselves and others from entirely preventable illnesses.
The National Conference of State Legislatures has published a list of the relevant vaccination laws in every state. However, as that same list notes, every state except Mississippi and West Virginia provides an exemption for religious beliefs. I have never been so proud of Mississippi and West Virginia in my life.
I may find myself in hot water for expressing this opinion, but your religious beliefs do not trump my right to avoid exposure to preventable illnesses. Nor do they trump the right of the immunocompromised transplant recipient, or the infant or toddler too young to be vaccinated against an illness that your child should never have been able to acquire.
I applaud Mississippi and West Virginia for enacting vaccination laws that reject the notion that religion can trump public health.
Unfortunately, nearly half of the states do permit exemptions for ‘philosophical’ reasons, a serious error in judgment that will require additional revisions to vaccination laws in order to remedy.
Federal law does provide ‘no-fault’ compensation to victims of vaccine side effects.
While federal law is silent on vaccination requirements, the federal government did pass the National Childhood Vaccine Injury Act of 1986 in part to recognize that, just as with all medicine, vaccinations are not entirely risk-free. The NCVIA sets aside a federal pot of taxpayer money to compensate victims of vaccine-related injuries.
The system under NCVIA is a no-fault compensation system for patients that can demonstrate that they were injured due to a vaccination. “No fault” means exactly what it sounds like: parents of injured children do not have to sue the manufacturer of a vaccine or otherwise prove that the manufacturer was negligent or “at fault” for a child’s injury. In exchange, it immunizes (get it?) vaccine manufacturers from lawsuits alleging simple negligence or even failure to warn. Under the NCVIA, in order to hold a manufacturer liable for an injury, a patient must show that the manufacturer acted fraudulently or intentionally made false statements regarding the vaccine.
Vaccination laws can be stronger
Is the NCLS’s chart shows, nearly half the states allow ‘philosophical’ exemptions from vaccination requirements. In this writer’s opinion, a philosophical exemption is merely a backdoor through which anti-vaccination experts can continue to endanger public health by avoiding vaccination requirements. States can amend their vaccination laws to require vaccinations in all cases except where a parent can demonstrate a medical reason for avoiding a vaccine.
Even the CDC, the staunchest proponent of vaccinations, recognizes circumstances exist under which it is medically inadvisable to vaccinate. For example, those with allergies any component of a vaccine should not be vaccinated [the most immediate example being egg allergies and the influenza vaccine]. Also, HIV patients who have not yet been stabilized on medication, or who have CD4 counts that are very low, should not be vaccinated.
These and other medical exemptions exist to protect individuals who are likely to be harmed, rather than merely offended, by a requirement to vaccinate.
Concluding thought: if the pharmaceutical industry develops a vaccination against HIV, anti-vaxxers will go into hiding as States add HIV to the list of required vaccinations.
I don’t really have much else to say on this subject. If you could vaccinate your child against HIV, wouldn’t you? Would you need a law on the books to compel you to do so?
I think not.