“Anti-vaccine activists have been claiming that statutes abolishing exemptions from school immunization requirements – like SB277 in California – are discriminatory. This post explains why this claim is wrong in both its form: school immunization requirements without exemptions are neither discrimination nor segregation.”
“Two bills are currently proposed in California that may dramatically affect vaccination rates. Anti-vaccine activists have mobilized against them. We, the majority of vaccinating parents, need to do the same, speak up and make our preferences known. Say clearly that we will no longer have a preventable risk of disease forced on our children, ourselves, and other family members and friends by a minority. And we can. ”
“Several people have asked me whether having school mandates is in tension with the idea of informed consent. The answer is no. While school mandates have some effect on parental autonomy, the doctrine of informed consent should not be conflated with autonomy.
For a somewhat different reason, imposing sanctions on those who do not vaccinate is also not a violation of informed consent.”
Responding to the Childhood Vaccination Crisis: Legal Frameworks and Tools in the Context of Parental Vaccine Refusal
Dorit Rubinstein Reiss
University of California Hastings College of the Law
Lois A. Weithorn
University of California Hastings College of the Law
March 4, 2015
Buffalo Law Review, Vol.63, August 2015, Forthcoming
UC Hastings Research Paper No. 134
In spite of vaccines’ impressive record of safety and effectiveness, some families have failed to immunize their children, denying those children protection against vaccine-preventable diseases. In the last years, rates of nonvaccination, as well as rates of partial adherence to vaccination schedules, have been increasing. Predictably, this has led to outbreaks of vaccine-preventable diseases. This article examines potential legal responses to this crisis. It sets out the legal framework governing childhood vaccination policies, highlighting the strength of governmental authority when the state’s police power to protect the public health and its parens patriae authority to protect the health of children and other vulnerable members of society converge, as they do in this context. After describing the phenomenon of nonvaccination, the reasons leading to parental refusals and the effects of those refusals, the article provides a menu of legal tools that can be used to improve vaccination rates.
“So, what do we have here?
At this point, no charges for manslaughter were filed against anyone. What we have is the start of an inquiry into the girl’s death, following a complaint by her parents. We do not know who, if anyone, will be charged with anything in connection to this.
A four-year-old daughter of wealthy, well-educated parents – no doubt a well nourished child – was left unvaccinated against measles, a preventable disease. Vaccination rates against it in Italy are around 90% for one dose of MMR and less than 85% for the second dose. As a result, cases are high in Italy: 3,943 reported cases in 2013 and 1,680 in 2014. MMR protects 95% of those that get one dose and 99% of those that get two doses (pdf). See the CDC information on MMR vaccine effectiveness. Those left unvaccinated – like little Clara was – are substantially more at risk of getting the disease. Clara did.
Little Clara got a generally fatal, horrible complication of the disease described by anti-vaccine activists as benign, mild or “a common childhood illness”.”
In June 2012, a labor court in Rimini, Italy granted compensation to the family of a child named Valentino Bocca. The family alleged that the MMR vaccine Valentino received as part of his childhood immunizations caused his autism, and the court compensated them on that theory. The lower court’s decision was never on very firm grounds: it depended in part on testimony of an expert decision who relied, in turn, on Andrew Wakefield’s debunked study. But it was used by anti-vaccine activists as part of their claims.
On February 13, 2015, a Court of Appeals in Bologna overturned the decision–a decision that apparently lead to a decline in MMR immunization rates in Romagna, an historical district of Italy.
The Court of Appeal accepted the appeal filed by the Ministry of Health (ministero della Sanità). The expert appointed by the court of appeal highlighted that there is no scientific evidence supporting a link between vaccines and autism. The expert highlighted that the lower court expert was wrong to rely on the study by Andrew Wakefield, a study debunked and rejected by the scientific community.
The expert also highlighted that while there is some temporal link between Valentino’s MMR vaccine and autism, in the sense that the diagnosis of autism followed the vaccine, the temporal connection was not strong and does not itself support a causal connection.
The expert, Dr. Lodi, stated that “In the medical history of the child there is not an objective temporal correlation between the gradual emergence of autistic disorders and the MMR vaccine, there is only the fact that the two events occur one before the other, but as shown, this is not sufficient to relate the two events “.
The Bocca’s lawyer, Luca Ventaloro, claimed that he will appeal to the Supreme Court of Cassation (Corte Suprema di Cassazione), the highest court in Italy.”
“On the 23 of September, 2014 a judge in the Labor Court of Milan awarded compensation (pdf, translated from Italian) to a child on the theory that the hexavalent vaccine manufactured by GSK – which protects children against polio, diphtheria, tetanus, pertussis, invasive disease Haemophilus influenzae type B and hepatitis B – caused the child’s autism. The decision was based on an expert’s opinion that made several extremely problematic arguments, arguments that go against the scientific evidence. It has been criticized by the Italian scientific community (translated summary, pdf), and is, apparently, being appealed.
This post explains the reasoning of the decision, and why it is fundamentally flawed.”
Andrew Wakefield filed a libel suit against Brian Deer, Fiona Godlee, and the British Medical Journal with the Texas Court, seen by many as an attempt to punish critics and galvanize supporter. These posts cover the story of that appeal.
- Andrew Wakefield’s suit against Brian Deer and BMJ rejected by the Court of Appeals: http://www.skepticalraptor.com/skepticalraptorblog.php/litigating-debate-tactic-andrew-wakefields-appeal-denied/
- Andrew Wakefield asks the Supreme Court for extension of time to file with them: http://www.skepticalraptor.com/skepticalraptorblog.php/andrew-wakefield-keeps-trying-appeal/
So far, no appeal was filed with the Supreme Court.
This post examines a recent New Jersey case addressing the situation of a nurse, June Valent, who was dismissed after refusing to be vaccinated against influenza. Her hospital offered a religious and medical exemption, but she refused to make use of them, emphasizing her reasons were secular. The hospital dismissed her and refused to pay unemployment benefits for seven weeks. The court found in her favor.
The post explains the problems with the court’s decision, and the problems with the hospital’s policy from a constitutional point of view.
In a series of articles in several news papers, authors reported on an associated press report and criticized the National Vaccine Injury Compensation Program for delays, claiming it mistreated petitioners. They used a case of an alleged vaccine injury to demonstrate the program’s faults.
This post explains the problems with the articles and with the use of the case in question:
Examination of a recent Oregon Supreme Court case that upheld a decision to vaccinate children in foster care when the parents objected – also review of other court decisions on topic:
The effect of Hobby Lobby on school immunization requirements and especially on religious exemptions.
Two whistleblowers claim Merck faked data on mumps’ vaccine effectiveness. A court rejects a motion to dismiss. What are the issues?
Lillvis, Kirkland and Frick describe trends in passing legislation that is pro or anti vaccine.
A family in France criminally charged for not vaccinating a young child.
An Australian court finds a homeopathic company published misleading articles about the whooping cough vaccine and homeopathic remedies.
Discussion of Amanda Naprawa’s article: can you sue providers of anti-vaccine misinformation using the tort of misrepresentation that causes bodily harm?