Improving immunization rates – what can the Law do? 

vaccine hate debate

Many of us are concerned at the rise of cases of preventable diseases and the role played in that by the decision by a minority of parents not to vaccinate their children. One question is what, if any, effects would legal tool have on improving immunization rates? This article attempts to map out the available tools.

Note that the focus of this article is what the law can do, not what the law should do. The fact that a legal tool is available – i.e. Constitutional, can be enacted or used by the courts – doesn’t automatically mean it should be. I would, in fact, argue that some of the tools discussed here shouldn’t be used in the context of immunization – in most circumstances, forced vaccination and criminal law are inappropriate. But mapping out what’s available seems like a useful first step in the discussion of what the law should do. The goal of this post is to provide a menu of options and a more or less logical way to classify them. My hope is that setting out what’s possible would help us think through what is desirable.

 

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Hobby Lobby and religious exemptions – good, bad and ugly

In the recent Burwell v. Hobby Lobby Stores, Inc. (Hobby Lobby) decision, a majority of the Supreme Court ruled that the Department of Health and Human Services (HHS)’s requirement that qualifying employer health plans under the the Patient Protection and Affordable Care Act of 2010 (ACA) include coverage for all FDA approve contraceptives cannot be applied to at least certain corporations stating religious objections.

The Court found that the regulations violated the Religious Freedom Restoration Act of 1993 (RFRA)’s prohibition on burdening exercise of religion. The majority made every effort to make that decision narrow as possible – but it still has concerning implications for the future, and Justice Ginsburg’s ringing dissent raises very important questions.

When the Skeptical Raptor asked me to write about this decision, we intended that I would discuss Hobby Lobby and religious exemptions for vaccines. But this decision is too important to stop there, so while I also address the vaccination aspect, my discussion is about the decision generally.

From my point of view – as a secular individual who believes reproductive freedom is crucial to women’s equality – the decision has some positives, but also much to be concerned about (I hope the analysis will also be useful to those whose views are different from mine, however). It’s not, however, a decision that turns the United States into a theocracy, as some of the more impassioned posts I’ve seen on Facebook suggest. In some ways, actually, just the opposite.

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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: Continue reading “Allowing teenagers to choose HPV vaccines – constitutional”

No faith – healthcare workers, vaccines and religion

June Valent started working for Hackettstown Community Hospital, New Jersey, in 2009. In 2010, the hospital adopted a policy requiring workers to be vaccinated against influenza, unless “there [was] a documented medical or religious exemption. For those with an exemption, a declination form must be signed and accompanied with an appropriate note each year.” An employee claiming a religious exemption just has to sign a form and bring a note from a religious leader. Employees using an exemption were required to wear a mask.

To her credit, Ms. Valent was unwilling to pretend her reasons for refusing the vaccine were religious. Less to her credit, she refused to be vaccinated, even though she had no medical reason, and vaccinating would reduce her chances of contracting influenza and transmitting it to her vulnerable patients. She did agree to wear a facemask, as any vaccine exempt worker would.

The hospital fired Ms. Valent for violating the policy. The issue under consideration was whether she was entitled to unemployment benefits. Under New Jersey law, an employer may deny unemployment benefits if the employee engaged in misconduct, which includes violating a reasonable rule of the employer. After somewhat complex proceedings, the Appeal Tribunal of the Board Of Review of the Department Of Labor decided to deny her the benefits because the employer’s requirements were “not unreasonable.” Continue reading “No faith – healthcare workers, vaccines and religion”

Parents, children, loss of custody and immunization

This article uses the very recent decision of the Supreme Court of Oregon in Department of Human Services v. S.M. (pdf) to discuss a specific question: if parents lose custody of their children, can they still refuse immunizations? The Oregon Supreme Court joins others in saying that the answer is no. As discussed, this is the right result.

Loss of custody and immunization is a key issue of parental rights on several levels. Let’s discuss the case in Oregon in detail

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Can FTC regulate anti-vaccine misrepresentations?

In a previous post, I discussed the proposal by Ms. Amanda Naprawa (Naprawa, 2013) to sue the tort of misrepresentation that causes physical harm against those spreading anti-vaccine misinformation, and under which conditions can that be done.

This article examines another tactic suggested by Ms. Naprawa, regulation by the Federal Trade Commission (FTC). This tactic is at once more limited and more powerful than the tort of misrepresentation. It is more limited, since the FTC’s power of regulating false speech is limited to commercial speech, and the decision to use it depends on the FTC, with individuals’ power to promote such action extremely limited. It is more powerful since individuals do not have to bear the costs of bringing a suit and proving the falsity, since it can be done before harms actually happen, and since it is a traditional power of the FTC that has been used in similar context in the past.

Maybe the FTC could regulate anti-vaccine misrepresentations in certain areas.

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Anti-vaccine claims, misrepresentation and free speech

Imagine the following scenarios:

  1. A mother comments on an anti-vaccine Facebook page belonging to a Doctor known for her opposition to vaccines, saying that she is about to travel to a third world country for which the CDC recommends certain vaccines. She asks what vaccines, if any, she should get for her unvaccinated eight-months old. The doctor responds with “none; these countries are perfectly safe, there’s no higher risk there”.
  2. Another mother comments on the same Facebook page saying that a dog bit her daughter. She asks whether she should, in this case, get the rabies vaccine or tetanus vaccines. The doctor recommends against it, deviating from the standard of care.
  3. An anti-vaccine organization publishes an article describing measles as a “mild childhood disease,” potentially beneficial to the immune system and repeating the debunked claim that the MMR vaccine causes autism. It encourages readers not to vaccinate.
  4. An anti-vaccine doctor records a video recommending that citizens in a country that had polio discovered in the sewers avoid getting the Oral Polio Vaccine, as their Ministry of Health recommends. The doctor claims that: 1) Polio is not generally dangerous, and the polio epidemics in the United States were caused by use of DDT, 2) the polio vaccine is more dangerous than polio itself, or 3) vitamin C can prevent or treat polio.
  5. These claims are demonstrably false.
  6. An anti-vaccine site has an article suggesting that tetanus is not usually dangerous and can be prevented by letting wounds bleed and cleaning them with hydrogen peroxide.

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Religious exemptions for vaccination – abuse and reform

In November 2013, the New Mexico Department of Health published the results of a survey examining people getting an exemption from school immunization requirementsThe survey found that most people getting an exemption – 54.9% – explained their reasons to be “philosophical” or personal belief, including concerns about vaccine harms, a preference for natural immunity, and a belief they could protect their children in other ways. 

The problem is that New Mexico does not offer a personal belief exemption. It offers medical exemptions and religious exemptions for vaccination only. In other words, these people got their vaccine exemption using an exemption that did not reflect their real reasons.

Our host, the Skeptical Raptor, invited me to describe an article I wrote on this that is forthcoming in the Hastings Law Journal. The article argues that: