Responsibility versus antivaccine activists

Antivaccinationists endanger public health. They deny to high heaven that that is what they do, but they are deluding themselves. Their fear mongering about vaccines, in which vaccines in general or specific ingredients are portrayed as causing autism and a wide variety of chronic diseases, despite study after study failing to find even a whiff of a hint of a correlation between vaccines or vaccine ingredients and autism, have resulted in precipitous declines in vaccination rates in some areas and contributed to an increase in the distrust of vaccines by parents. In the US, although overall vaccine uptakes remain high, there are increasing pockets of low vaccine uptake that can serve as foci for outbreaks to occur. About five or ten years ago, it seemed to me that the antivaccine contingent was ascendant, but fortunately, thanks to the downfall of Andrew Wakefield and increasing scrutiny by the news media (not to mention a growing contingent of skeptical bloggers), the tide seems to be turning. It used to be that virtually every story about vaccines would feature the false balance of a vaccine “skeptic” arguing against science. We see much less of that these days, and that’s a good thing indeed.

One area where antivaccinationists have still had a bit of progress is in opposing or watering down laws designed to make it harder for parents to obtain nonmedical exemptions from vaccine mandates for school Although certain vaccines are required before children can enter school, in 48 states nonmedical exemptions to this requirement can be obtained in the form of religious exemptions and, in many states, “philosophical” exemptions, which basically means the parents saying they don’t want to vaccinated because, well, they have a philosophical objection to them. In other words, they don’t want to. Now, few would argue that adults don’t have control over what they put into their bodies and the right to refuse virtually any medical intervention. However, the same does not apply to children. Parents shouldn’t have the right to withhold lifesaving medical care from their children, such as chemotherapy for children with cancer, insulin for diabetic ketoacidosis, or antibiotics for serious infections. True, in practice, unfortunately, that is not always true, as all too many parents have gotten away with substituting faith healing and quackery for effective medicine for their children, even they manage to let two of their children die.

A case can be made that refusing vaccines for children is potentially just as negligent as the beliefs that led Catherine and Herbert Schaible in the Philadelphia area to choose prayer over antibiotics for pneumonia. Their choice resulted in two dead children. Who better to make that case than Paul Offit, who wrote an article for entitled End religious exemption. Using the Schaible case as his jumping off point, Offit argued:

In 2009, Herbert and Catherine Schaible chose prayer instead of antibiotics for their 2-year-old son, Kent, who died from bacterial pneumonia. The Schaibles received 10 years’ probation. Recently, their 8-month-old son died without medical care. Their other seven children have now been removed from the home.

The 14th Amendment to the Constitution states that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” Children whose parents hold certain religious beliefs shouldn’t be afforded less protection than other children. That the commonwealth has allowed children to die from measles, bacterial pneumonia, or leukemia in the name of religion is inexplicable. That it continues to allow such abuse in the face of recent deaths is unconscionable.

He has a point. There is a growing body of evidence that, consistent with what one might conclude based on common sense, states with vaccine exemptions that are easy to obtain tend to have more parents who take advantage of them and more unvaccinated or under-vaccinated children. From a strictly scientific standpoint, the fairest solution would be to eliminate nonmedical vaccine exemptions altogether. It would also protect children who are unfortunate enough to be born to parents who, for whatever reason, are unwilling or unable to provide them with the basic protection against disease that modern medicine can provide.

If not vaccinating only endangered the children who don’t receive protective vaccines, that would be bad enough, but it goes beyond that. Unvaccinated children contribute to the degradation of herd immunity, serve as potential vectors for outbreaks of infectious disease, and tend to cluster, making the effect on herd immunity locally that much worse. In brief, parents who refuse to vaccinated endanger not just their own children, but all children who come into contact with their children. This simple fact led noted bioethicist Art Caplan to write a recent article for Harvard’s Bill of Health blog entitled Liability for failure to vaccinate. Noting that molecular biology is allowing scientists to get better and better at tracking disease outbreaks to their source and thus identify “patient zero” with more accuracy than ever, Caplan asks:

I think there should be a right to decide not to vaccinate your child. But, we have been far too lenient in putting up with the consequences of that lousy choice. If your kid gets the measles, and remember public health officials are getting very very good at tracing outbreaks to their source, and makes my kid sick (can happen since vaccine is not 100% effective), my newborn baby die (newborns can’t benefit from vaccines) or my wife miscarry (fetuses are at especially high risk), then shouldn’t I be able to sue you for the harm you have done?

He concludes:

When the subject is vaccines a tiny minority continue to put the rest of us at risk. We are willing to let them choose to do so without penalty. That should change. If I know you or your kid made mine sick because you chose not to vaccinate then you should bear full responsibility for the harm you knew or ought to have known could happen.

I’m not entirely sure I agree anymore with Caplan that there should be an inherent right not to vaccinate your child. I used to, but my thinking on the issue has been evolving recently. At the very least, I’m starting to look at it this way. There’s no “right” to endanger other children in school when vaccines are so effective and safe, with serious reactions veyr rare. Be that as it may, I’ve always thought that, if parents are have the right not to vaccinate, they also bear the responsibility that comes from that choice. There should be a mechanism to sue parents who refuse to vaccinated their child if their child ends up making another child sick—not just to sue, but to sue for big damages. After all, antivaccine parents frequently harp on “personal freedom” and “personal responsibility.” Fair enough. I believe in personal responsibility, too, which is why I believe that antivaccinationists should take responsibility for their actions in the form of legal liability. If the child infected by the unvaccinated child dies, I might even go so far as to advocate a statute that would allow the vaccine-averse parents to be charged with negligent homicide, as portrayed on an episode of Law & Order:SVU a few years back, to the outrage of antivaccine-leaning moms.

Not surprisingly, the antivaccine crank blog did not like Paul Offit’s editorial. Its editors didn’t like it one little bit. Anne Dachel trotted out the usual “pharma shill gambit” and ad hominem attacks against Paul Offit. She even trots out a massive flaming straw man, “Vaccines were only a little part of this story and it seems that parents shouldn’t be allowed the final say in any medical procedures their children receive. Paul Offit’s views supersede any religious beliefs parents might hold.” Man, that one can no doubt be seen from space.

A lawyer named Alan Phillips even popped up on uber-crank Mike Adams’ site to try to refute. It’s a lot of the same antivaccine nonsense, with some strange legal arguments thrown in. For instance, he points out that vaccines don’t always work and that there are a lot of nonimmune vaccinated children out there, all of which is true but irrelevant to the argument over vaccine exemptions. He claims that some kids develop natural immunity, conveniently leaving out that children need to get the disease. He claims that children can get natural immunity without getting sick and that the CDC said so; I must admit, I couldn’t find an instance of the CDC stating this, but I didn’t have large amounts of time to keep looking. I will admit one thing, namely that Phillips did say something that intrigued me and irritated me:

A complete explanation of how exactly the law defines “religious in nature” is beyond the scope of an article, but in general, anyone who is not an atheist can potentially qualify for a vaccine religious exemption–the legal definition of ‘religion’ is literally that broad.[1]

It’s just one more instance of how religious belief is privileged in this country. In states that allow religious exemptions but not philosophical exemptions, religious people have a “right” that atheists do not: The right not to vaccinate their children. Granted, that’s not exactly an attractive right given that it involves actively choosing not to protect children against disease, but it still privileges the religious.

Be that as it may, even as a non-lawyer I saw some questionable legal reasoning as well. For instance, while railing against the decisions of the Mississippi Supreme Court, whic ruled that religious exemptions violate the 14th Amendment’s Equal Protection Clause. Phillips characterizes that ruling as an “anomaly” and “embarrassment,” but fails to note that the U.S. Supreme Court has repeatedly upheld the Constitutionality of vaccine mandates and that, exemptions aside, no court has found any individual constitutionally entitled to forego compulsory vaccination on any ground.

Perhaps the most amazing argument Phillips makes is this:

There is a legal presumption that the exercise of a vaccine religious exemption does not pose a significant risk to anyone; for if it would, state legislatures, who are presumed to have considered the possible consequences of enacting exemption laws, would not have enacted the exemption laws in the first place. The consequences state legislatures considered were all medical safety issues, of course. That is, the legal presumption rests upon prevailing medical theory and practice.

So, medically and legally, religious exemptions pose no significant health risks. Moreover, should they ever pose a potential health risk in the future, states are empowered to take steps to keep the risk at bay. For example, exempt kids can be excluded from school during local outbreaks, and health authorities may quarantine unvaccinated persons during a declared emergency.

If there is, in fact, a “legal presumption” that vaccine religious exemptions “pose no significant health risk,” that’s all the more reason why the law should be changed. It’s just plain wrong. Nonmedical exemptions to vaccine mandates do nothing more than increase the number of unvaccinated children, thus degrading herd immunity and endangering children, unvaccinated and vaccinated alike. If, in fact, there is a legal presumption of no harm from exemptions, then the law is an ass. The rest of Phillips’ article degenerates into a rant, in which he claims that vaccines are made by an industry that “routinely engages in criminal behavior” and that vaccines “injure and kill.” He even trots out the same old ad hominem attacks against Paul Offit in which he is accused of not serving science and the law but “another master.”

Not content to see Phillips attack Paul Offit, an “old friend” of the blog, antivaccine lawyer Mary Holland, decided to jump in and attack Art Caplan. Her post appeared on—of course!—that wretched hive of antivaccine scum and quackery, AoA. Unfortunately, the editors of Harvard’s Bill of Health blog also let Holland post her drivel there as well. Her arguments, as hard as it is to believe, are even more incoherent than Phillips’. This is not surprising, given that Holland was the legal mastermind behind a “study” that purported to show that vaccines cause autism and the government has compensated children for vaccine-induced autism. One also notes that she apparently failed to get IRB approval for this study, even though it was clearly human subjects research.

In any case, if you look at her argument, she uses the same irrelevant argument that Phillips used, namely that vaccines don’t always work, which means that there are unvaccinated nonimmune children out there, and—oh my God!—we don’t hold the parents of these children responsible! For example:

Dr. Caplan seems to suggest a peculiarly narrow kind of civil liability, allowing claims only by those who have been vaccinated and become sick against those who lawfully refused vaccination. What if a vaccinated person spreads disease? Presumably, she would bear no liability because she would not have been negligent.

She uses the case of a case in which a father apparently contracted polio from the diaper of his daughter, who had recently had the live polio vaccine (which isn’t used any more, by the way). One notes that this occurred before the Vaccine Court, and that the family litigated it. The vaccine industry, obviously, fought. In court. Holland also failed to mention that Mr. Tenuto ultimately prevailed to the tune of $22.5 million in 2009.

Not content with that non sequitur, Holland followed up with a straw man:

And what if disease breaks out in a highly vaccinated population, with no unvaccinated person to finger? There have been numerous outbreaks of mumps, measles and pertussis with no initial cases traced to unvaccinated individuals. [See, e.g., Nkowane et al, “Measles Outbreak in a Vaccinated School Population: Epidemiology, Chains of Transmission and the Role of Vaccine Failures,” AJPH April 1987, 77, no. 4.] Presumably, Dr. Caplan would argue no liability should inure to industry because the sale of ineffective or defectively designed vaccines does not constitute negligence.

Except that Caplan said nothing of the sort and argued nothing of the sort. Holland merely “presumes.” In any case, Holland’s argument seems to boil down to pointing to risks of vaccines and crying “Freedom!” Indeed, a reader over at the Bill of Health blog commented that “some old-fashioned torts analysis would be helpful.” Basically, the burden of risk (which for vaccines is very, very small, is only one factor to consider against the benefits of vaccination to each child individually and to society as a whole. He refers to the “textbook example of negligence” as the one “where an individual seeks to avoid imposing burdens on self and thereby externalizes risk to others.” A better description of antivaccinationists is hard to imagine. Indeed, whether or not some vaccinated people might spread disease is irrelevant to whether nonvaccinating parents are acting unreasonably and should be liable. The example used is driving a car. Drivers can cause accidents without negligence, but that is not a bar to liability for negligent drivers. He concludes:

The closest that this fact would come to being relevant would be if one were claiming that the risk of spreading disease is equally as high for those vaccinated and unvaccinated. That claim would undermine causation. But of course, that’s generally not true.

And how!

It’s nowhere even close to being true, although likely Holland believes it to be true, given her history of vastly exaggerating the risks of vaccination (e.g., claiming that vaccines cause autism) and downplaying the benefits.

I’m not sure if I support eliminating all religious and philosophical exemptions, although, if anything, I’m closer to that position than I was a few years ago, largely thanks to my observations of the behavior of the antivaccine movement and resurgence of measles in the UK, thanks to the decline in vaccine uptake encouraged by Andrew Wakefield’s dubious studies and the scandal hunger of the British press. That question aside, I also believe in personal responsibility, which is why I agree with Art Caplan that there should be a mechanism to sue non-vaccinating parents whose children spread disease and can be shown to have caused injury to others. It is, after all, a matter of taking responsibility for one’s actions.

Of course, taking responsibility is anathema to antivaccinationists. Their whole idea is to avoid even the slightest risk and, knowingly or unknowingly, to sponge off the herd immunity of those who accept the tiny risk of vaccination.