The Legal Debate Around the “Anti-Vaxx” Movement

By Emma Davies
Emma Davies  is a freshman in the College of Arts and Sciences at the University of Pennsylvania. 

Anti-vaccine rhetoric and practices continues to hold a seat in public discourse, despite intensive research to refute myths and countless examples of its effectiveness in not only combating communicable diseases, but reducing risk of certain cancers [1]. Refueled in recent years by social media and online platforms, “a emotional contagion, digitally enabled”, as termed by Heidi Larson in Nature has begun to endanger even more individuals that before [2]. In fact, this year, the World Health Organization recognized vaccine hesitancy- the voluntary reluctance to vaccinate- as one of the top 10 global health threats , such that diseases that were once considered extinct or near extinct in certain countries are re-emerging. The United States alone saw 372 cases of measles in 2018, despite once being considered an “eliminated” disease [3]. The emerging growth of vaccine hesitancy, coupled with the re-emergence of preventable diseases, thus prompts the need for an important discussion of the legal bounds of vaccine refusal with particular emphasis on the dynamic of parental decisions and child welfare. ​

With public safety in mind, federal and state mandates require school-age children to be vaccinated for various diseases. However, most states allow for some sort of exemption. The nature of these exemptions differ on a state-to-state basis, ranging from exemption solely for medical reasons (such as those granted to the immunocompromised), exemption for religious reasons, and in some states, for merely personal or philosophical reasons. In effect, religious exemption allows certain religious organizations to refrain from certain vaccinations given legitimate concern that it counters faith-based beliefs. For example, certain Catholic authorities, such as the Catholic Medical Association, object to mandating the HPV vaccine, arguing that a vaccine that protects against a STD may promote sexual activity and thus contradicts abstinence-based teachings (4) . As a result, most states support this as a norm, such that 48 states allow exemptions to public school vaccine mandates for religious purposes [5]. Whereas, respect of religious beliefs maybe of high importance it is important to note that historically, vaccine refusal and the outbreak of preventable diseases is highly linked to the presence of insular, religious minority groups. It is important to note in these cases, that religious reasons may only be a small part of the cause of undervaccination in these communities. Lack of access to accurate information due to language or cultural barriers, along with decreased access to modern public health, has made certain minorities: Orthodox Jews, Somali-Americans, and the Amish particularly susceptible to disease outbreaks in recent history. Since these groups often live, work, and go to school with the same small group of people, the risk that a couple unvaccinated individuals have on the population can be particularly severe [6].

Important consideration of web policies must be made in light of the rise of “anti-vaxxers” who derive their choices based on misinformation spread through social media, and other media platforms. Myths and hoaxes that vaccines are harmful and may cause disorders or diseases continue to maintain hold in informing views, such that many have fallen victim to this incorrect information. A common myth that vaccines causes autism still circles the web, despite multiple studies failing to find any correlation between the two. As a result, 29% of US adults believe that vaccines can cause autism [7] . Social media sites, such as Instagram, Pinterest and Facebook have become large breeding grounds for these sentiments. For example, the Facebook group “Stop Mandatory Vaccinations” has 159,000 members alone. The audience for incorrect and negative postings related to vaccines, could potentially be even more expansive, as members share content in their “timeline” or the content pops up on “suggested pages” [8]. In efforts to limit the spread of misinformation, social media sites have changed their policies so that these types of pages and groups have lower rankings and won’t show up on recommendations. However, none of these sites will remove incorrect content, thus allowing the people behind “anti-vax” groups and pages to maintain the right to freely post without regard for misinformation or fear-mongering. Furthermore, possible government regulation, such as SB-1424, has emerged to attempt to stomp out people’s ability to make and disseminate incorrect information online [9]. For most of the public, this government measure airs on the side of extreme and has the potential to restrict the freedom to access and publish information online [10] .

Online policies and government mandates can only extend so far in encouraging public safety and providing accurate information. Individuals still in essence have a choice in the 20 states, which allow exemption from vaccination due to “philosophical” or “personal” reasons [11] . In sum, the states that allow exemption due to personal beliefs give more weight to concepts of personal autonomy and liberty than societal order and security relative to the states that allow no exemptions or solely exemptions based on religious reasons. Furthermore, internet companies weigh respect for free speech and personal autonomy while hoping to maintain safety, security, and the value of truth.

Laws concerning exemptions from vaccination consequentially address the dynamics of valuing parental autonomy and child welfare. Whereas, parental autonomy is an important value in state laws, this right does not extend to the ability to neglect a child or to make decisions that adversely affect the child’s life. In general, while withholding medical care can be considered an act of abuse or neglect liable to prosecute, refraining from vaccination would not typically fall under this category because it does not directly harm the child [12]. With this in mind, allowing for the withholding of vaccinations for medical or religious purposes is portrayed as respect for parental autonomy and liberty. However, public health mandates that require students to become vaccinated prior to attendance, oft speak to a need to follow a utilitarian model of producing the best consequences for the most amount of people. That is, the choice to vaccinate or not, places a higher standard on how many people would benefit or conversely how many would be harmed, rather than to the degree by which a parent’s can follow their beliefs. In this case, when many choose not to vaccinate their own children, they put in danger not only their children’s lives but those who are immunocompromised. In a US Supreme Court case concerning faith healing, the comment, “right to practice religion freely does not include the liberty to expose the community or the child to communicable disease or the latter to ill health or death places this argument into context [13]. The norms established by the court, situate child welfare at a high standing, even if some states tend to diverge by having laxer paths to exemption. This does not mean that courts are blind to the potential misfalling related to vaccines. On the rare chance that a vaccination results in bodily harm, compensation is backed by the National Childhood Vaccine Injury Act of 1986 [14]. In this way, the court system is calibrated to respond to legitimate concerns related to vaccines. Conversely, if an individual loses a loved one as a result of their contact with a sick, unvaccinated individual, then civil court provides a potential avenue by which they may sue for rightful compensation. Personal choice, if honored in state policies, legitimately entails personal responsibility for the consequences at the hand of these decisions [15].

In light of current changes in societal practices towards vaccinations, laws and the judicial system must be poised to react carefully and effectively. Policies towards vaccine exemptions differ across state lines, but fundamentally attempt to maintain a reasonable balance between parental choice, and societal welfare. The rise in incidences of illness due to intentional refrain from vaccination prompt discussion into the realms of freedom of expression and the nature of liability. As the judicial system responds both to incidents of injury due to vaccinations and lack of vaccinations, the value of choice is likewise matched with that of responsibility. 
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References
[1] Akbar, Rada. "Ten Health Issues WHO Will Tackle This Year." World Health Organization. Accessed March 14, 2019. https://www.who.int/emergencies/ten-threats-to-global-health-in-2019.
[2] Larson, Heidi J. "The Biggest Pandemic Risk? Viral Misinformation." Nature 562, no. 7727 (October 18, 2018): 309. doi:10.1038/d41586-018-07034-4.
[3] "Measles Outbreaks in America Are Getting Harder to Contain." The Economist, March 9, 2019. March 9, 2019. Accessed March 14, 2019. Measles outbreaks in America are getting harder to contain.
[4]Zoberi, Kimberly Schiel. "A Physician’s View of the Ethics of HPV Vaccination." Health Care Ethics USA, Spring 2017, 20-27. 2017. Accessed March 24, 2019. https://www.chausa.org/docs/default-source/hceusa/a-physician-s-view-of-the-ethics-of-hpv-vaccination.pdf?sfvrsn=0.
[5] "Ethical Issues and Vaccines." History of Vaccines. Accessed March 14, 2019. https://www.historyofvaccines.org/content/articles/ethical-issues-and-vaccines.
[6] Belluz, Julia. "New York's Orthodox Jewish Community Is Battling Measles Outbreaks. Vaccine Deniers Are to Blame." Vox. January 08, 2019. Accessed March 14, 2019. https://www.vox.com/science-and-health/2018/11/9/18068036/measles-new-york-orthodox-jewish-community-vaccines.
[7] Plunkett, Carolyn. High School Bioethics Project at NYU School of Medicine. NYU School of Medicine. NYU Langone Health. Accessed March 14, 2019. https://med.nyu.edu/highschoolbioethics/sites/default/files/highschoolbioethics/EthicsofVaccinations_Module.pdf
[8] "Facebook Announces Plan to Curb Vaccine Misinformation." Facebook Says It Will Start Combating Misinformation About Vaccines, March 8, 2019, New York ed., Business sec. March 7, 2019. Accessed March 14, 2019. https://www.nytimes.com/2019/03/07/technology/facebook-anti-vaccine-misinformation.html.
[9] SB-1424 , Sess. of 2017 (Cal. 2017), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1424
[10] Mitchell, Amy, Elizabeth Grieco, and Nami Sumida. "Americans Want Online Information Freedoms Over Government Restriction of Fake News." Pew Research Center's Journalism Project. April 25, 2018. Accessed March 14, 2019. http://www.journalism.org/2018/04/19/americans-favor-protecting-information-freedoms-over-government-steps-to-restrict-false-news-online/.
[11] Hotez, Peter J. "The Counties Where the Anti-vaccine Movement Thrives in the US." The Conversation, November 14, 2018. Accessed March 14, 2019. https://theconversation.com/the-counties-where-the-anti-vaccine-movement-thrives-in-the-us-106036.
[12] Plunkett, Carolyn. High School Bioethics Project at NYU School of Medicine. NYU School of Medicine. NYU Langone Health. Accessed March 14, 2019. https://med.nyu.edu/highschoolbioethics/sites/default/files/highschoolbioethics/EthicsofVaccinations_Module.pdf
[13] Berlinger, Nancy, PhD, Mdiv. "Parental Resistance to Childhood Immunizations: Clinical, Ethical, and Policy Considerations." AMA Journal of Ethics 8, no. 10 (2006): 681-84. October 2006. Accessed March 14, 2019. https://journalofethics.ama-assn.org/article/parental-resistance-childhood-immunizations-clinical-ethical-and-policy-considerations/2006-10.
[14] Salsburg, Steve. "Supreme Court Saves Childhood Vaccines -- And Public Health." Forbes, March 1, 2011. Accessed March 14, 2019. https://www.forbes.com/sites/sciencebiz/2011/03/01/supreme-court-saves-childhood-vaccines-and-public-health/#444a02eb59aa.
[15] Reiss, Dorit Rubinstein. "Compensating the Victims of Failure to Vaccinate: What Are the Options?" Cornell Journal of Law and Policy 23 (2014): 595-632. Accessed March 14, 2019. https://www.lawschool.cornell.edu/research/JLPP/upload/Reiss-final.pdf.
Photo Credit: Getty Images: Science Photo Library Tex Image https://www.verywellhealth.com/what-is-a-live-virus-vaccine-200925

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