Allowing teenagers to choose HPV vaccines – constitutional

It is morally painful when anti-vaccine sentiment goes so far as to put children at risk of disability, suffering and death. But, that is exactly what a letter written by North Carolina attorney and vaccine critic Alan G. Phillips would do. The problem is that in laying out his case against the enactment of legislation that would protect the health and well being of adolescents in New York State he fails to make one.

The New York assembly is considering A497, a bill that would allow adolescents to receive treatment – including allowing teenagers to choose HPV vaccines for prevention of those infections – against a sexually transmitted disease without their parents’ or guardians’ knowledge or consent. The goal is clearly a laudable one; to insure teenagers don’t leave themselves at risk of sexually transmitted diseases or neglect treating one because they are worried about their parents’ reaction.

Or, sadly, in some instances, because they fear seeking permission to get vaccinated from a parent or family member who may be sexually abusing them. By allowing adolescents to consent to vaccines or other treatment on their own, the bill minimizes the potential for serious harm such as liver cancer (from Hepatitis B), anal cancers or cervical cancer (from HPV infections).

Several other states have passed such laws. They are consistent with long-established laws granting greater decision-making authority to minors with regard to reproductive health and contraception. Phillips disagrees. He sent a letter to NY State legislators arguing that the bill violates federal and state laws and should not be enacted. Not so. Here is why. Contrary to his claims:

The bill is constitutional

 

Parental rights are very important in our legal system. Multiple Supreme Court cases have highlighted the fact that a fit parent enjoys considerable decision making over their children’s education and life (most recently Troxel v. Granville, 530 U.S. 57 (2000)).

But parental rights are not absolute: states have the authority to limit parental rights – even if based on religious preferences – to protect a child’s welfare and health. In fact, the state has the responsibility to act as parens patriae and protect a child’s health against problematic parental decisions (Prince v. Massachusetts, 321 U.S. 158 (1944)).

This is true generally, and is true when the parent’s reasons for endangering a child’s health, for example, through opposing immunizations, are claimed to be on religious grounds. As Prince said: “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”

Every court in the United States – state or federal – has upheld these basic principles. Most recently the Federal District Court of the Eastern District of New York reaffirmed them (Phillips v. City of New York, 12-cv-98 (2014)).

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Does not conflict with the National Childhood Vaccine Injury Act

 

§300aa-26 of the NCVIA requires health care providers to provide to “the legal representatives of any child or to any other individual to whom such provider intends to administer such vaccine” the Vaccine Information Sheet developed under the act. There is nothing in that language, however, that limits who can serve as legal representative of the child for this purpose, and it certainly allows a state to determine who can make the decision.

A497 – like the statutes that allow minors to consent to these vaccines in other states – does not violate the federal act, nor does it require healthcare professionals to do so.

Act is an appropriate balance between the child’s right to health and parental rights

 

While our Hepatitis B and HPV vaccines are very safe, nothing is 100% safe.  As with any medical intervention including aspirin, there is always a possibility of a problem. But the reality of extremely rare risk should be balanced against the very real and substantial risks of cancer and death which these vaccines help prevent. Requiring parental consent will lead to the omission of safe, effective vaccinations and other treatments given the connection to sexual behavior parents may oppose.

None of the objections Attorney Phillips raises against the legislation are valid.. There are important public health considerations that support its enactment. The NY state legislature should look out for the health of kids and pass the bill.

This guest post was written by Arthur L Caplan PhD, Professor of  Bioethics at the Department of Population Health, Division of Medical Ethics, NYU Langone Medical Center, and by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law in San Francisco, CA.  

 

Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.