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CSU 39/2009: HPV VACCINATION IN SWEDEN/ THE MORAL JUSTIFICATION FOR A COMPULSORY HPB PROGRAM/ SCHOOL VACCINATIONS AND TORT LAW

Friday, 5th of June 2009 Print

                 CSU 39/2009: HPV VACCINATION IN SWEDEN/ THE MORAL        

           JUSTIFICATION  FOR A  COMPULSORY HPV PROGRAM/ SCHOOL

                              VACCINATIONS AND TORT LAW
 
 Why have not all countries followed the example of Sweden?
 
 Good reading.
 
 BD
 
 
 1) ACCEPTANCE OF THE HPV VACCINE FOR ADOLESCENT GIRLS
 
 Writing in the Journal of Adolescent Health, Christian and colleagues find
 high acceptance of HPV in the southern state of Kentucky.
 
 
 ------1: J Adolesc Health. 2009 May;44(5):437-45. Epub 2008 Oct 31.
 Acceptance of the HPV vaccine for adolescent girls: analysis of
 state-added questions from the BRFSS.
 Christian WJ, Christian A, Hopenhayn C.
 Markey Cancer Control Program, University of Kentucky, Lexington,
 Kentucky 40504-3381, USA.
 

PURPOSE: Previous research regarding human papillomavirus (HPV)
 awareness and vaccine acceptance has relied on convenience or other
 selected samples of the population. To assess the prevalence of HPV
 awareness and vaccine acceptance in Kentucky we added questions to
 the 2006 Kentucky Behavioral Risk Factor Survey System (BRFSS), a
 population-based survey of health behaviors.

 METHODS: Women who participated in the statewide BRFSS were asked
 two HPV-related questions: one assessed previous awareness of HPV,
 and another assessed vaccine acceptance for girls 10 to 15 years
 old. We used crosstabulations and multivariate logistic regression
 to determine which factors were associated with HPV awareness and
 vaccine acceptance. Because the HPV vaccine Gardasil was approved
 in June 2006, we conducted an analysis of pre- and postapproval HPV
 awareness and vaccine acceptance. We also compared results across
 Appalachian and non-Appalachian counties, two distinct regions of
 Kentucky.

 RESULTS: Overall, 57.6% of women had heard of HPV, and 70.2%
 accepted vaccination for girls. HPV awareness increased after
 Gardasil's approval, but the increase was much smaller among
 Appalachian women. Prevalence of vaccine acceptance was unchanged
 in both regions. Awareness of HPV was not associated with vaccine
 acceptance, and factors significantly associated with vaccine
 acceptance in multivariate analysis differed by Appalachian status.
 CONCLUSIONS: This population-based survey of Kentucky women found
 relatively high vaccine acceptance for girls. Also, many
 respondents reported not knowing whether they accept vaccination,
 and factors associated with vaccine acceptance varied by
 Appalachian status. These findings suggest that acceptance of the
 HPV vaccine for girls may improve with targeted interventions.
 
 
 2) HPV VACCINATION IN SWEDEN
 
 Writing in Eurosurveillance, Tegnell and colleagues describe how Sweden is
 introducing human papillomavirus vaccination for teen-age girls from 2010.
 Full text is at
 http://www.eurosurveillance.org/ViewArticle.aspx?ArticleId=19119
 
 
 3) THE MORAL JUSTIFICATION FOR A COMPULSORY HPV PROGRAM
 
 Writing in the American Journal of Public Health,  Joseph Balog makes the
 case for a compulsory HPV program in the US. He asks ‘is the utility and
 good of a compulsory vaccine in preventing harm greater than the utility
 and good of preserving individual liberty and choice?’  Reviewing the legal
 and philosophical groundwork for compulsory polio vaccination in the 1950s,
 he quotes J. S. Mill’s essay On Liberty.
 
 ‘Mill argued that "the only purpose for which power can be rightfully
 exercised over any member of a civilized community, against his will, is to
 prevent harm to others."7 In the polio vaccination campaign, the diminution
 of individual autonomy and liberty was justified by the collective interest
 of the public in preventing harm from disease and promoting the common
 good. The ethical principles of beneficence and nonmaleficence and the
 desire to prevent harm overrode the ethical principles of autonomy and
 liberty.’
 
 Articles like Balog’s from industrialized countries, where screening has
 already reduced the mortality burden from cervical cancer, leads to the
 obvious question: if what's good for the goose is good for the gander, why
 not universal HPV in the developing world, where to date HPV is only being
 implemented on a pilot scale? Is cost alone a strong argument for adopting
 a two-track vaccination schedule, one for the industrialized countries,
 another for the rest of the world?
 
 
 AJPH First Look, published online ahead of print Feb 5, 2009
 April 2009, Vol 99, No. 4  American Journal of Public Health 616-622
 © 2009 American Public Health Association
 DOI: 10.2105/AJPH.2007.131656
 
  The Moral Justification for a Compulsory Human Papillomavirus Vaccination
 Program
 
 Joseph E. Balog, PhD, MSHYG
 Joseph E. Balog is with the Department of Health Science, College at
 Brockport, State University of New York.
 Correspondence: Requests for reprints should be sent to Joseph E. Balog,
 Department of Health Science, The College at Brockport, State University of
 New York, 350 New Campus Dr, 19 Hartwell Hall, Brockport, New York 14420
 (e-mail: jbalog@brockport.edu
 
 
    ABSTRACT
 
 
 
 Compulsory human papillomavirus (HPV) vaccination of young girls has been
 proposed as a public health intervention to reduce the threat of the
 disease. Such a program would entail a symbiotic relationship between
 scientific interests in reducing mortality and morbidity and philosophical
 interests in promoting morality. This proposal raises the issue of whether
 government should use its police powers to restrict liberty and parental
 autonomy for the purpose of preventing harm to young people. I reviewed the
 scientific literature that questions the value of a HPV vaccination.
 Applying a principle-based approach to moral reasoning, I concluded that
 compulsory HPV vaccinations can be justified on moral, scientific, and
 public health grounds.
 
 
    INTRODUCTION
 
 
 
 Early in the 1950s, polio hysteria erupted across the United States in the
 wake of a rash of new cases. Thousands of people, mostly young children,
 were crippled. In 1952, more than 58 000 cases of polio were reported,
 including 21 000 cases of paralytic polio and more than 3000 deaths.
 Terrified parents, worried that polio would render their children unable to
 walk or force them into iron lungs,1 kept their children away from beaches
 and movie theaters. Medical researchers conducted experimental studies in
 public schools. Polio became one of the most feared and studied diseases in
 the mid-20th century.2,3
 
 In retrospect, the decision to implement a compulsory vaccination program
 for polio was an effective, legal, and ethical use of public health
 authority. The vaccine was effective: the incidence rate for polio was 3.6
 times higher for unvaccinated than vaccinated children, the Salk vaccine
 was 80% to 90% successful in preventing paralytic poliomyelitis, and over
 the 2- to 3-year period after the Salk vaccine was introduced, an overall
 60% to 70% prevention rate was achieved.1,2,4 As a result, the elimination
 of poliomyelitis has been called one of the 10 great public health
 achievements of the 20th century in the United States.5
 
 Compulsory vaccination of children for polio seems to be legally compatible
 with a precedent established by the 1905 Supreme Court ruling in Jacobson
 v. Massachusetts. Bayer and Moreno point out that the Court in this case
 decided that a compulsory vaccination program that addressed a smallpox
 outbreak was legal.6 According to the authors,
 The Supreme Court held the U.S. Constitution permits states to enact "such
 reasonable regulations [to] protect the public health and public safety" as
 long as such efforts did not "contravene the Constitution of the United
 States, nor infringe any right guaranteed or secured by the instrument."6
 (p249)
 
 Thus, the Court set a precedent for allowing compulsory vaccination
 programs to control epidemics and prevent the spread of infections. Any
 implementation of a compulsory human papillomavirus (HPV) vaccination
 program should follow legal precedents that include the right of states to
 allow exceptions for individuals with medical, religious, and philosophical
 objections.
 
 A compulsory HPV vaccination program also appears to be ethically
 permissible according to the harm principle proposed by John Stuart Mill in
 On Liberty.7 Mill argued that "the only purpose for which power can be
 rightfully exercised over any member of a civilized community, against his
 will, is to prevent harm to others."7(p13) In the polio vaccination
 campaign, the diminution of individual autonomy and liberty was justified
 by the collective interest of the public in preventing harm from disease
 and promoting the common good. The ethical principles of beneficence and
 nonmaleficence and the desire to prevent harm overrode the ethical
 principles of autonomy and liberty.
 
 
    POLIO AND HUMAN PAPILLOMAVIRUS
 
 
 
 Today, parents and guardians of children, politicians, and medical and
 public health professionals who help protect the health of Americans face a
 similar dilemma: should vaccination against HPV be made compulsory among
 young girls and women who have not yet engaged in sexual activity (and
 therefore almost certainly have not been infected by HPV)? Even as the new
 HPV vaccine created a scientific and public health breakthrough in cancer
 prevention, it also generated great interest in and controversy about
 making it compulsory.8
 
 Similar to polio, HPV is a common infectious disease in humans. According
 to research by Cates9 and Weinstock et al.,10 and a report from the Centers
 for Disease Control and Prevention,11 approximately 6.2 million new cases
 of HPV infection are reported every year, and 20 million people in the
 United States already have HPV. A recent study estimated that 26.8% of US
 women are infected with some form of HPV, meaning that 1 in 4 US women aged
 14 to 59 years is infected with this sexually transmitted virus that in
 some forms can cause cervical cancer.12 In addition, reports from the
 American Cancer Society13 and the Centers for Disease Control and
 Prevention14–16 estimate that every year between 10 520 and 12 200 women
 will develop invasive cervical cancer and between 3900 and 4100 women will
 die from this disease. Thus a major similarity between polio and HPV is
 that both are infectious diseases that cause harm.
 Polio is a highly contagious disease, and the poliovirus is transmitted
 primarily through oral contact with the feces of an infected person. Polio
 also can be spread through contaminated food or water, especially in areas
 with poor sanitation systems.2 Some infected persons have no symptoms, but
 polio can produce a range of effects, from nonparalytic forms of the
 disease, with sore throat, fever, nausea, diarrhea, and other mild
 symptoms, to paralytic polio that can cause muscle fatigue and paralysis.
 In 1% of infections, the virus spreads to the bloodstream and central
 nervous system, causing varying degrees of paralysis and, in extreme cases,
 death from paralysis of the muscles that control respiration.
 The term HPV encompasses a group of more than 100 viruses; 30 are sexually
 transmitted.17 Genital HPV infections vary in their effects: some produce
 no symptoms, low-risk types cause abnormalities or genital warts, and
 high-risk types may lead to cancer of the cervix, vulva, vagina, anus, or
 penis.18 A key difference between polio and HPV is that many of the serious
 detrimental physical effects of polio are immediate and visible (e.g.,
 paralysis and death), whereas some of the more serious consequences of HPV
 (e.g., cervical cancer and death) occur much later in the course of the
 disease.
 
 Another significant similarity between polio and HPV is that health
 professionals have access to effective vaccines to help prevent their
 spread. In the case of polio, vaccination is the best way to prevent the
 disease.2 Today, most children in the United States receive 4 doses of
 inactivated polio vaccine; this vaccine is 90% effective after 2 doses and
 99% effective after 3 doses. The HPV vaccine, Gardasil (Merck and Co, Inc,
 Whitehouse Station, NJ), is the first vaccine developed to prevent cervical
 cancer, precancerous genital lesions, and genital warts. One form of this
 vaccine is given in a series of 3 injections over a 6-month period and is
 reported to be highly effective in preventing 4 types of infection in young
 women who have not been previously exposed to HPV.19 Gardasil targets the
 types of HPV that cause up to 70% of all cervical cancers and approximately
 90% of genital warts.20,21
 
 Polio and HPV are also alike in that, despite the publicity they have
 received and the emotion they have provoked, the most serious cases of both
 diseases have low incidence rates. At its peak in the 1950s, polio's
 average incidence was approximately 50 per 100 000 people, fewer than 1% of all polio infections resulted in flaccid paralysis, and during the most
 intense outbreak, in 1952 to 1953, 145 people died.22 Reports of the
 incidence rates for HPV infection and for genital warts specifically have
 been relatively imprecise, but it is estimated that in the United States as
 many as 100 per 100 000 people develop genital warts.23 Saraiya et al.
 report that in the United States in 2002, there were 11 071 cases of
 invasive cervical cancer and the incidence rate was 8.5 per 100 000 people.
 24 Gerberding reports that an estimated 4100 women die from this disease
 annually.16
 
 Polio is not the only disease for which mandatory vaccination has been
 successful and publicly accepted. Vaccination is required for measles, a
 highly contagious acute viral disease that can cause mild to serious harm.
 Before the introduction of the measles vaccination in 1963, the United
 States had approximately 3 to 4 million cases of measles annually;
 approximately 400 to 500 persons died, 48 000 were hospitalized, and 1000
 developed chronic disability from measles encephalitis.25 In response to
 this health threat, society mandated that children receive the measles,
 mumps, and rubella vaccine. The immunization of many reduced harm in a few.
 This is the nature of public health vaccination programs.
 The desire of some health professionals to prevent illness and deaths from
 diseases that have low morbidity and mortality rates raises questions about
 whether the ends—lowered morbidity and mortality rates—justify the
 means—compulsory vaccinations. The key moral dilemma is whether a
 utilitarian perspective that weighs the social and health care consequences
 and costs should override a deontological perspective that it is always
 good to act to prevent harm, disease, and death. In other words, is the
 utility and good of a compulsory vaccine in preventing harm greater than
 the utility and good of preserving individual liberty and choice?
 
 
 OPPOSITION TO THE HUMAN PAPILLOMAVIRUS VACCINE
 
 
 
 The segments of society that oppose the use of an HPV vaccine present
 several reasons. I limited my analysis to 2 general yet important
 rationales for opposing a compulsory vaccination program. The first arises
 from the strong association of HPV with sexual contact, in contrast to
 contagious diseases such as polio that are usually associated with casual
 contact.26 A major consequence of the association of HPV with sexual
 contact has been that opposition groups link concerns about preventing
 morbidity and mortality with concerns about morality regarding sexual
 behavior, especially among youths. This relationship between HPV infection
 and its mode of transmission has led some parents and conservative groups
 to resist having their children vaccinated by mandatory or voluntary means
 because they believe that exposing children to an HPV vaccine will increase
 sexual activity among youths, undermine family values forbidding premarital
 sexual relationships and promoting abstinence, and create a false sense of
 security about being protected from sexually transmitted infections (STIs).
 27–30 In place of a vaccination program, these groups advocate abstinence
 education and better communication between parents and children to foster
 family values that prohibit premarital sexual relationships.
 
 Scientific literature offers a second reason to oppose compulsory
 vaccination: the benefits of vaccination are not great enough to warrant
 such a controversial step. Some researchers have argued that the mortality
 rate of cervical cancer is too low to be considered an imminent harm that
 justifies overriding individual liberty and autonomy. After considering
 epidemiological data, mortality trends in cervical cancer, and the unknown
 long-term effects and efficacy of the HPV vaccine, some health
 professionals have argued in favor of voluntary vaccination, improved
 screening and treatment, or both instead of mandatory vaccination to reduce
 the threat of cervical cancer.8,31–38 Others, however, argue that the
 ethical principles of beneficence, nonmaleficence, autonomy, and justice
 can justify compulsory vaccination programs.
 
 
 
 
 ETHICS AND MORALITY OF COMPULSORY VACCINATION
 
  
 To begin the process of moral reasoning on this dilemma, it is reasonable
 to acknowledge that health professionals and members of society who support
 a compulsory vaccination program and their counterparts who oppose
 compulsory vaccination programs and prefer alternatives such as voluntary
 vaccinations, premarital abstinence programs, improved screening and
 treatment, and other options, appear virtuous. None of the proposed
 alternatives to compulsory vaccination are intended to do harm. Rather, all
 parties to the debate desire good, achieved through differing means.
 
 Furthermore, neither the act of making a compulsory HPV vaccination program
 available nor implementing alternative programs possesses any inherent or
 intrinsic feature that is wrong or harmful. Therefore, from a public health
 perspective, a judgment about the rightness or wrongness of a compulsory
 vaccination program should be determined by assessing whether key ethical
 principles justify such action, whether this action reduces harm to
 individuals and society, and whether this action produces consequences that
 are at least as good as, if not better than, alternative actions that are
 available for preventing disease and death.
 
 Beneficence and Nonmaleficence
 HPV infection can lead to suffering and harm. Scientific observations have
 documented that young people in the United States engage in sexual
 practices that place them at risk for STIs and subsequent illnesses such as
 cervical cancer. For example, it is estimated that 46% of high school
 students have sexual intercourse with another person by the time they
 graduate and 75% of young people have sexual relationships before they
 marry.39–43 STIs are reportedly common among sexually active adolescent
 girls. For example, the Centers for Disease Control and Prevention
 estimates that 3.2 million adolescent girls have STIs, and of these, 18.3%
 are infected with HPV.44 The transmission of 2 common HPV types, types 6
 and 11, are responsible for 90% of genital warts; types 16 and 18 account
 for approximately 70% of all cervical cancers worldwide. The HPV vaccine
 can reduce and prevent this harm. Thus, providing access to HPV vaccination
 to potentially at-risk sexually active young people is a significant and
 reasonable act of beneficence and nonmaleficence because it can help to
 reduce the incidence of this communicable disease and maintain health. A
 policy that forbids or interferes with this harm-reducing action and may
 thus lead to unnecessary suffering is at least morally questionable.
 
 Those segments of society that oppose the use of the HPV vaccine, because
 of the belief that it will increase undesirable sexual behaviors or
 interfere with certain family values, focus not on prevention of immediate
 physical harm but on a social desire to uphold deeply rooted moral values
 about how the young should sexually behave. Eradicating physical disease
 that resides in people becomes secondary to sustaining social ideas that
 some segments of society hold among themselves.
 
 From a public health perspective, treating and reducing real harm should be
 preferred over adhering to a belief about interventions that do not exist
 or are not effective. For example, studies—including a major research
 project that analyzed 4 abstinence programs45—have found that teaching
 abstinence from sexual activity outside marriage has no statistically
 significant effect on eventual behavior.46–48 In addition, studies of
 communication between parents and children have documented that such
 communications have a positive effect49–51; however, research has also
 shown that not all parents discuss sexuality issues with their children and
 that the rate of this communication varies greatly and is affected by such
 factors as the parents’ gender, religious affiliation, and self-efficacy in
 communication; the topic of discussion; and the risk-taking behavior of the
 child.52–54 Research also has found that perception of the quality of
 communication between parents and children differs depending on whether the
 parent or the child is interviewed.55 Furthermore, studies have
 demonstrated that parents frequently lack adequate sexual knowledge and
 communication skills to effectively deal with personal and human sexuality
 issues.56,57
 
 Evidence about the rates of HPV infections and sexual activity among the
 young, the ineffectiveness of abstinence programs, and the quantity and
 quality of communications between parents and children on sexual issues
 demonstrates a need for public health interventions that prevent the harm
 that HPV causes among young people. A compulsory or voluntary vaccination
 program could greatly improve disease prevention over the status quo. It
 would be wrong to uphold a symbolic ideal of no sexual intercourse among
 youths by prohibiting an alternative that can alleviate a real harm. In an
 ideal world, all people would stop engaging in risky sexual behaviors and
 all parents would engage in meaningful and effective discussions with their
 children about sexual (and other important) matters. However, these worthy
 ideals are not realistic enough, nor likely to occur soon and often enough,
 to match the effectiveness of a vaccine that is available now to eliminate
 real and immediate harm. Reducing the transmission of HPV infection among
 youths is an act of beneficence, and the alternative—opposing vaccinations
 that can reduce real and probable harm or simply failing to provide them—is
 an act of malevolence.
 
 Autonomy
 An important question is, whose autonomy should have a higher priority, the
 child's or the parent's? It is reasonable to consider who is at greater
 risk and who stands to gain a greater benefit. In the case of HPV
 vaccination of youths who have not yet been exposed to HPV, the right of
 the child to receive the preventive measure should override respect for the
 parents’ autonomy and the parents’ desire to teach social beliefs that
 restrict health care action, because the health threat directly involves
 the life of the child. The rights, autonomy, and desires of parents are
 important, but the consequences of the decision affect them indirectly. If
 respect for parental autonomy leads to denying children access to effective
 health care, the probability of harm and the loss of benefits are much
 greater for the children than for their parents.
 
 Disease, disability, and loss of life are burdens—for both individuals and
 society—that outweigh the benefits derived from upholding parental rights
 and authority. Furthermore, the availability of a voluntary or compulsory
 vaccination program does not deprive parents of the opportunity, or the
 right, to teach their own values to their children. It simply helps to
 ensure health care for all. As Colgrove pointed out in his essay on ethics
 and politics associated with an HPV vaccine,
 Minors have a right to be protected against vaccine-preventable illness,
 and society has an interest in safeguarding the welfare of children who may
 be harmed by the choices of their parents and guardians.26(p2390)
 
 Justice
 The risks of polio, STIs, and cancer are present in society, and all
 people, regardless of age, are exposed to these health problems, albeit at
 different rates during different stages of life. It would be wrong,
 according to Rawls's principle of justice, to provide health care to one
 group and withhold health care from another group because of a bias about
 age, race, gender, socioeconomic status, religion, or other factors.58 The
 opportunity for justice, according to Rawls, should be provided to all
 impartially. This principle implies that an HPV vaccine should be made
 available to everyone in need. Universal access is fair, and withholding
 the vaccine on grounds of age, potential sexual behavior, or competing
 values about sexual engagement among youths is unfair.
 
 Making age, marital status, or sexual activity a criterion for receiving
 health care is discriminatory. That the mode of HPV transmission is sexual
 in nature and that youths choose their sexual behaviors are inconsequential
 to the correctness of an action to reduce harm in adolescents and young
 adults. Causes of death or disease—whether polio or smoking, AIDS or
 cancer—should never enter into decisions about access to health care,
 regardless of whether human behavior is a factor. Society best provides
 health care justice by offering all citizens the opportunity to receive
 health care, such as HPV vaccination. Justice is not served by limiting
 opportunity to vaccination because of age, social views about sexual
 behavior, the mode of transmission of a disease, or a desire to blame the
 victim for harmful consequences of sexual activity.
 
 STIs and cancer are real risks in society, and they should not be
 exacerbated by an unequal distribution of health resources. Withholding
 vaccination would be unjust, and making HPV vaccination voluntary would
 significantly reduce the number of youths who would benefit from it. As
 several public health professionals have pointed out, mandates are the most
 effective way of ensuring accessibility for young people and achieving
 widespread protection against disease.26,35,37 Charo, noting the
 disproportionate burden placed on certain races and socioeconomic groups,
 stated that compulsory vaccinations are the most effective means of
 protecting poor and disadvantaged women from the scourge of cervical
 cancer.34 In addition, Saraiya et al. suggested that these populations,
 which are at the greatest risk for cervical cancer, are being missed by
 current vaccine initiatives.24 Therefore, compulsory vaccinations would be
 a more effective means of protecting poor and disadvantaged women from
 cervical cancer.
 
 In theory, both compulsory and voluntary vaccination programs allow all
 individuals access to treatment. However, as Saraiya et al. pointed out,
 racial and socioeconomic inequalities exist in incidence patterns of
 cervical cancer and in cervical cancer screening rates. For example, these
 researchers found that in the United States, incidence of cervical cancer
 was 50% higher among African American women and 66% higher among Hispanic
 women than among White women.24 These groups not only have greater risk for
 cancer but also have lower rates of screening, do not receive the same
 benefits from screening as do other populations, and are at greatest risk
 of being missed by vaccine initiatives.
 Raffle suggested that an uneven distribution of risk and resources could
 affect uptake of an HPV vaccine in certain socioeconomic and ethnic groups.
 31 He further suggested that a high uptake of vaccinations in lower
 socioeconomic groups is important because these groups are at the greatest
 risk of developing cervical cancer. It is likely that the populations with
 a disproportionate burden of disease are the hardest to reach with a
 voluntary vaccination program. Consequently, if justice is to be served by
 a voluntary program, then special attention, as provided by such efforts as
 the Vaccines for Children program, should be given to marketing, delivery,
 and accessibility of vaccinations to impoverished or underserved adolescent
 girls.
 
 In all probability, however, voluntary vaccination programs will preserve
 the disparity between advantaged and disadvantaged populations, and the
 groups at greatest risk will continue to have the highest rates of HPV
 infections and cervical cancer. A compulsory vaccination program will
 better serve populations that are at greatest risk and in most need of
 health care and social justice. A utilitarian cost–benefit approach may
 lead to the greatest good for the greatest number of people, but a
 compulsory approach may produce the greatest utility for populations who
 are at greatest risk of disease. A compulsory vaccination program,
 therefore, appears to be a better alternative for ensuring justice and a
 fair opportunity for all in reducing harm caused by HPV infections.
 
  
 SCIENTIFIC CONCERNS ABOUT COMPULSORY VACCINATION
  
 
 Concerns have been raised in the scientific literature about mandating an
 HPV vaccination. In general, these objections evolve from a traditional
 utilitarian public health perspective that assesses the costs, benefits,
 outcomes, and risks of a compulsory vaccination program aimed at preventing
 health problems associated with HPV infection, including cervical cancer,
 that have low morbidity and mortality rates.
 Scientists who question the use of a compulsory program recognize that an
 HPV vaccination can provide a highly effective means of protection from
 cervical cancer but caution against mandatory measures before research
 provides evidence of the vaccine's relative value. For example, Gostin and
 DeAngelis argue that the benefits from reducing an already low incidence
 rate of cervical cancer may be minimal.32 Others assert that no imminent
 harm exists,31,32,35 an alternative method of screening has been effective
 in reducing this threat,31,32 achieving universal uptake will be difficult,
 31 the vaccine is expensive,31,32,35 long-term efficacy is not known,8,31,
 32 and the ethics of limiting autonomy remains an issue.26,31,32,35 Lo
 stated,
 
 Mandatory public health polices can be ethically justified if voluntary
 measures have failed, no less coercive alternatives exist, the scientific
 rationale is compelling, and members of the general public are unknowingly
 at risk.33(p357)
 I cannot thoroughly address here all of these reasons for opposing
 compulsory vaccination, but 3 central points deserve note: that rates of
 cervical cancer have been relatively low, that existing measures of
 screening and treatment have been effective in reducing cervical cancer,
 and that the added value of vaccinations may be modest.
 Epidemiological data have shown that HPV is a common sexually transmitted
 infection in the United States. However, the data also revealed that the
 high-risk HPV types associated with cervical cancer, types 16 and 18, have
 a low prevalence among women (3.4%) and that not all women who are infected
 with high-risk HPV types will develop cervical cancer.12,32,59–61
 Researchers have questioned the cost-effectiveness of requiring a
 vaccination to reduce already low rates of cervical cancer. Raffle wrote
 that in England, morbidity and mortality rates for cervical cancer have
 dropped, with an incidence rate of 15.4 per 100 000 people in 1986 and 9.6
 in 2000 and a mortality rate of 10.9 per 100 000 people in 1950 and 3.4 in
 2004.31 Saraiya et al. reported a similar trend in the United States:
 incidence declined from 10.2 cases per 100 000 people in 1998 to 8.5 per
 100 000 in 2002.24
 
 Raffle and others interpreted this data to mean that improved screening and
 treatment played a major role in reducing cervical cancer incidence and
 mortality rates. Raffle concluded that high-quality cervical screening has
 reduced deaths from cervical cancer by an estimated 80% and that a
 mandatory vaccine would add only a small benefit.31 Sawaya and Smith-McCune
 also pointed out that although studies have shown the vaccine to be up to
 99% effective, they were short-term studies with young women who had not
 been exposed to HPV types 16 and 18.8 These authors hypothesized that a
 study of the effect of vaccination on populations that included sexually
 active and nonactive women and that used grades 1 to 3 intraepithelial
 neoplasia or adenocarcinoma in situ as an outcome measure might find that
 the overall efficacy for all women would be modest.8
 
 Sawaya and Smith-McCune analyzed results from Females United to
 Unilaterally Reduce Endo/Ectocervical Disease (FUTURE) I and II trials.
 Their analysis of FUTURE I results concluded that rates of grades 1 to 3
 cervical intraepithelial neoplasia or adenocarcinoma in situ per 100
 person-years were 4.7 in vaccinated women and 5.9 in unvaccinated women, an
 efficacy of 20%. Their analysis of the FUTURE II results concluded that
 rates of grade 2 or 3 cervical intraepithelial neoplasia or adenocarcinoma
 in situ were 1.3 in vaccinated woman and 1.5 in unvaccinated women, an
 efficacy of 17%. In addition, the authors calculate that the difference in
 risk was modest, 3.6% for vaccinated women and 4.4% for unvaccinated women.
 8
 
 The scientific literature contains both data and questions about whether
 compulsory HPV vaccination would produce the desired cost-effective
 outcomes. Some researchers hypothesize that reductions in cervical cancer
 rates might be modest and the societal consequences great: a mandatory
 program's infringement of individual liberty and autonomy could impair
 citizens’ trust in a public health care system.
 
 
    CONCLUSIONS
 
 
 
 A major goal of public heath is to prevent disease and illness and promote
 health through community-wide organization and health care actions. This
 can involve prevention measures such as the use of compulsory vaccinations
 to reduce harm in individuals.
 
 The incidence, prevalence, and health threats of HPV infection are similar
 to those of other diseases that have given rise to mandatory vaccination
 programs. HPV is the most common STI in the United States, with an
 estimated 6.2 million individuals newly infected annually. An estimated 11
 000 newly diagnosed cases of HPV-associated cervical cancer occur annually
 in the United States, resulting in an estimated 3700 to 4100 deaths. The
 Centers for Disease Control and Prevention recommend HPV vaccination for 30
 million girls and women aged 11 to 26 years in the United States—a classic
 case of treating the many to prevent harm to a few.61
 
 In the United States, it is common to use vaccinations to reduce disease,
 including mandatory vaccinations for diseases such as measles and polio
 that have relatively low incidence rates for serious harm. The difference
 with HPV infection is that vaccination is being recommended to prevent
 cancer and genital warts that are related to sexual behavior, which raises
 moral, social, and scientific concerns among some segments of society. But
 youths who face the threat of STIs and cancer are in as great a need of
 disease prevention as children who faced the threat of polio in the 1950s.
 To withhold available and effective measures that prevent disease and death
 is immoral, as is advocating for alternative programs such as abstinence
 education that are unrealistic and ineffective.
 
 Opposition in the scientific literature to compulsory vaccination arises
 from important and valid objections to an unspecified definition of
 imminent harm, given low rates of morbidity and mortality from cervical
 cancer and lack of long-term evidence for the safety and efficacy of the
 vaccine. However, there is precedent for mandating vaccinations against
 diseases that have low incidence rates of serious harm. Although the
 vaccine is less effective for sexually active women, it is nonetheless an
 important preventive measure for young women who have not been exposed to HPV types 16 and 18.
 
 The HPV vaccine is not a replacement for cervical cancer screening and
 treatment. Rather, as Saraiya suggested, it is an additional and valuable
 tool for fighting cancer.24 Combining a 70% reduction of cervical cancer by
 vaccination with the 80% efficacy of screening and treatment of cervical
 cancer will achieve a greater good for society than can be produced by
 either of these health measures alone. In addition, although vaccination
 will not eliminate the continued need to improve screening methods for
 detecting cervical cancer, it could potentially reduce the need for the
 intrusive treatment required for cervical cancer.
 
 As more becomes known about the long-term consequences of an HPV vaccine,
 it is reasonable to hope that the goals of science—development of a safe
 and effective vaccine—will ally with moral ideals to offer all citizens
 equal access to a vaccine that reduces harm, which will be especially
 valuable to the disadvantaged populations at greatest risk. Ideally, this
 would occur on a voluntary basis, but history teaches us that it will be
 best accomplished by implementation of a compulsory vaccination program.
 
 Some have proposed as an ethical test for mandatory public health polices
 that such policies can only be justified if voluntary measures have failed,
 no less coercive alternatives exist, the scientific rationale is
 compelling, and members of the general public are unknowingly at risk. I
 propose that the rightness or wrongness of a compulsory vaccination program
 should be determined from a public health perspective by assessing whether
 key ethical principles justify such action, whether the action reduces harm
 to individuals and society, and whether the action produces consequences
 that are at least as good as, if not better than, alternative actions that
 are present in society for preventing disease and death. Compulsory HPV
 vaccination meets this test.
 
 
 
 
    Human Participant Protection
 
 
 
 
 No protocol approval was required because no human participants were
 involved.
 
 
 
 
    Footnotes
 
 
 
 
 Peer Reviewed
 Accepted for publication August 1, 2008.
  
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 4) SCHOOL VACCINATIONS: THE ROLE OF TORT LAW
 
 Using HPV as an example, Anthony Ciolli proposes the use of tort law in
 implementing vaccination policies in the US.
 
 
Yale J Biol Med. 2008 September; 81(3): 129–137.

Published online 2008 September.

Copyright ©2008, Yale Journal of Biology and Medicine

Mandatory School Vaccinations: The Role of Tort Law

Anthony Ciolli, JD, MBE

University of Pennsylvania Law School and University of Pennsylvania School of Medicine

To whom all correspondence should be addressed: Anthony Ciolli, 148-53 61 Road, Flushing, NY 11367; Tele: 917-362-1355; E-mail: aciolli@gmail.com .

This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial No Derivatives License, which permits for noncommercial use, distribution, and reproduction in any digital medium, provided the original work is properly cited and is not altered in any way.

The United States is on the verge of a public health crisis. For decades, all 50 states have required that parents vaccinate their children against various diseases, including polio and measles, as a prerequisite to enrolling them in public schools [1]. While virtually all states have tailored their immunization statutes to exempt those with religious (and sometimes philosophical) objections to vaccines from these requirements [2], widespread use of these exemptions threatens to undermine many of the benefits of mandatory vaccinations, such as preserving “herd immunity” [3]. Since it is unlikely that state governments will eliminate such exemptions outright, society must consider other methods of providing incentives for vaccination and compensating those who have suffered due to a disease outbreak caused by a community’s loss of herd immunity.

This essay will propose using tort law as a mechanism for prevention and victim compensation while still preserving religious and philosophical exemptions to mandatory school vaccinations. Part I will provide a short overview of mandatory school vaccinations and the dangers posed by widespread use of religious and philosophical exemptions. Part II will explore the potential role of tort law, with a particular emphasis on private causes of action against specific individuals and the possibility of defendant class action lawsuits. Part III will examine whether tort law is an appropriate remedy.

 

Why Mandatory Vaccinations?

States institute mandatory immunization requirements as a prerequisite to public school enrollment because it is the most efficient method of perpetuating herd immunity. Herd immunity is present in a community when such a high percentage of its members have been immunized from a particular disease that the disease cannot gain a foothold in the community [3]. Thus, achieving and maintaining herd immunity protects not only those who have been vaccinated, but also those with compromised or weak immune systems, such as the elderly, babies, and those afflicted with HIV [3,4,5].

But herd immunity does not just reduce levels of human suffering. Since achieving herd immunity is an inherently preventive measure, mandating school vaccinations as a method of perpetuating herd immunity is far less costly for governments, health care providers, and the economy than treating victims of a disease after it has appeared in a community. The preventable 1989-91 measles outbreak in the United States, for example, created $100 million in direct medical costs alone [6]. Herd immunity, then, is not only the most efficient method of preventing illness and human suffering, but also the most cost effective.

Religious & Philosophical Exemptions to Mandatory Vaccinations

Although many organized religions, including Catholicism and Judaism, do not prohibit vaccinations,1 several smaller religious sects, most notably Christian Scientists and the Amish, oppose vaccination on religious grounds [3]. Other individuals oppose vaccination for other reasons, ranging from non-religious philosophical or moral beliefs, such as a belief that vaccines interfere with “nature’s genetic blueprint” [8], to unspecified “personal reasons.”2

Religious and other exemptions to mandatory vaccination laws are not required by the U.S. Constitution.3 However, since 100 percent immunization rates are not needed to achieve herd immunity,4 most state governments have chosen to exempt certain individuals from their mandatory vaccination requirements, believing that communities can obtain herd immunity even if such individuals do not become immunized. Most notably, 48 out of 50 states have exempted those whose religious beliefs forbid vaccination [2]. Eighteen states also have made the more controversial decision to exempt individuals who claim to possess non-religious cultural or philosophical objections to vaccines,5 which in some states are granted merely by checking one box on a simple form [9].

Such exemptions are not surprising, “[g]iven Americans’ deep respect for individual freedom” and the fact that “absolutely mandatory immunization laws meet stiff resistance” [13]. However, continuing recognition of such exemptions may not be sustainable in the long run.

The Dangers of Religious and Philosophical Exemptions

In recent years, the core premise behind allowing religious and philosophical exemptions — that communities can still achieve herd immunity even if such exemptions are granted — has come under significant doubt.

Religious Communities as Disease “Hot Spots.”

Governments traditionally have considered “communities” in relatively broad terms, viewing entire states — or sometimes even the whole nation — as a “community” for herd immunity purposes [14]. However, recent experiences have demonstrated that actual communities are far smaller. For instance, although nationwide measles vaccination rates appeared high enough to ensure national herd immunity, disproportionately low vaccination rates among blacks and Hispanics resulted in measles outbreaks in several large urban areas, most notably Los Angeles [15].

Religious communities — particularly Christian Science, Amish, and Mennonite communities — have been the source of many preventable disease outbreaks in recent years. Diseases from polio [16] to measles [17] to rubella [18] have resurfaced with increasing frequency in the United States due to herd immunity being lost in such religious ghettos. This comes at a tremendous cost to society, for “vaccine-preventable diseases impose $10 billion worth of healthcare costs and over 30,000 otherwise avoidable deaths in America each year” [19].

Religious and Philosophical Exemptions as Exemptions of Convenience.

However, those with genuine religious objections to vaccination do not represent the entirety of the threat to society. Many individuals increasingly have taken such exemptions not because of genuine beliefs, but because they are simply too lazy to vaccinate their children. Since such parents “do not bear [the] negative externality costs or harms” of losing herd immunity directly, they “may not take them into account in making their decision not to be immunized” [20]. In fact, thousands of parents have joined mail-order or sham religions, such as the “Congregation of Universal Wisdom,” so they can qualify for religious exemptions and not have to go to the trouble of vaccinating their children.6

The situation is even worse in states where one can obtain an exemption for non-religious “philosophical” reasons, with such states frequently having the highest vaccination opt-out rates in the nation [22]. Admittedly, individuals may take advantage of philosophical exemptions for a wide range of reasons, ranging from “devotion to ‘natural’ or alternative healing” to “libertarian opposition to state power” to “mistrust of pharmaceutical companies” to a “belief that vaccines are not as safe as experts claim” [23]. However, there is little doubt that many parents use such exemptions out of mere convenience rather than sincere belief — for instance, one recent empirical study has shown a significant relationship between religious and philosophical exemption rates and the level of “red tape” or governmental scrutiny used to get the exemption, with states with very simple exemption processes having the highest exemption rates and states with very complex procedures having the lowest [22]. The widespread and growing use of religious and philosophical exemptions for convenience may, in the long run, jeopardize herd immunity, not just in religious communities, but secular ones as well.

The Role of Tort Law

Although most scholars have recommended that state governments close the “legal loophole” of religious and philosophical exemptions [23,24,25], this nation’s political landscape makes outright eliminating these exemptions highly unrealistic.7 Tort law, however, may allow state governments to retain religious, philosophical, and other exemptions to mandatory vaccinations, while still providing both a deterrent against religious exemptions of convenience and a mechanism for compensating victims.

What is Tort Law?

A “tort” is defined as a “civil ‘wrong’ — other than a breach of contract — that causes injury, for which a victim can get a judicial remedy” [27]. This judicial remedy typically entails “requiring the wrongdoer to pay compensatory monetary damages to the victim sufficient to restore the victim to status quo ante — i.e., to the position the victim would have occupied had the injury not been caused by the defendant’s wrong” [28]. Such damages typically will cover economic losses suffered by the victim — such as medical bills and lost income — as well as non-economic losses, such as mental or emotional distress [28]. Furthermore, in exceptionally egregious cases, courts also may award punitive damages as a means of deterring such conduct [29].

Class Action Lawsuits

Perhaps one of the biggest obstacles to applying tort law to the mandatory vaccination context is the inherent difficulty in assessing blame to any particular individual for the community’s loss of herd immunity. Since herd immunity may perpetuate even if 10 percent of a given community has not been vaccinated, it may be difficult — if not impossible — to determine which specific individuals are to blame for causing herd immunity to dissipate. Similarly, while the loss of herd immunity may cause significant damage to society, those damages may be allocated over a large number of actors. While certain institutions, such as hospitals, may have experienced damages high enough to justify a lawsuit, many individuals may have suffered injuries that, while significant to them, do not justify the cost of a lawsuit.

Class action lawsuits, however, may provide an effective mechanism for pursuing such tort claims. Federal Rule of Civil Procedure 23 (“Rule 23”) allows members of a class to “sue or be sued as representative parties on behalf of all” members of that class [30]. Though each state sets forth its own rules of civil procedure and has its own distinct requirements for class action lawsuits, many have chosen to adopt rules similar to Rule 23 [31].

The Prerequisites to a Class Action Lawsuit.

Rule 23 sets forth four requirements that must be met for a class action lawsuit to proceed: numerosity, commonality, typicality, and adequacy of representation [30]. All of these prerequisites are likely to be met in a hypothetical class action lawsuit involving the loss of herd immunity.

Numerosity

While courts have not adopted any bright line rules to tell whether the numerosity requirement has been met [32], courts generally have found the requirement satisfied if a class contains at least 40 members [33]. Given the sheer number of individuals who suffer as a result of the loss of herd immunity, plus the large number of people who would need to use a religious or philosophical exemption in a given community to cause herd immunity to fade away, numerosity probably would be a relatively easy requirement to meet both for a defendant class and a plaintiff class.

Commonality

Commonality in a class action tort suit for failure to vaccinate one’s children through use of a religious or philosophical exemption also would be strong. As the name implies, the commonality element is fulfilled when there is a single issue common to all members of a class [34]. Since all members of a plaintiff class would have suffered in some way from a completely preventable disease emerging, and since all members of a defendant class would have contributed to the loss of herd immunity that contributed to that disease’s emergence in the community by using non-medical exemptions to avoid vaccinating their children, many common issues of law and fact would be present.

Typicality and Adequacy of Representation

The typicality and adequacy of representation requirements are often related. For a court to allow a class action to proceed, it must find that the arguments made by the representative parties are typical — in other words, the arguments made by the attorney representing a plaintiff class, as well as arguments made by an attorney representing a defendant class, must be typical to those made by other members of the class and not unique to the “named” party [35]. Similarly, the adequacy of representation requirement is meant to ensure that there are no intra-class conflicts of interests and the resulting trial would truly be fair — an example of the adequacy of representation requirement not being met would be if a plaintiff deliberately sued a representative defendant who has limited financial resources or a representative defendant who, for whatever reason, has little or no stake in the outcome and, thus, has no incentive to put on a vigorous defense on behalf of the entire class [36]. Both of these requirements, however, should not be difficult to meet.

Rule 23(b) Categories.

A class action lawsuit must not only meet the Rule 23(a) prerequisites, but also fall into one of three categories described in Rule 23(b) [37]. Fulfilling one of the Rule 23(b) categories likely would pose the greatest obstacle to a religious exemption lawsuit. Two of these categories — those defined in Rule 23(b)(2) and (b)(3) — are clearly inapplicable in this context, for 23(b)(2) does not apply to defendant class actions and 23(b)(3) “must allow class members to ‘opt-out’ of the litigation,” which, when applied to a defendant class, would almost certainly result in virtually all defendants opting out [38].

Rule 23(b)(1)(B) allows the maintenance of a class action when “the prosecution of separate actions by or against individual members of the class would create a risk of adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudication or substantially impair or impede their ability to protect their interests” [39]. Courts, however, often have interpreted this rule very narrowly, finding that certification under this rule requires that a “precedent plus” standard be met, a standard “which requires precedential effect plus some other factor in order to justify certification” [40]. Though meeting this standard would be very difficult, it is not impossible. One court, for instance, found that multi-forum patent infringement lawsuits may meet this standard because the “inherent difficulty of the subject matter … and the expense involved” may cause subsequent courts to “accord great weight” to the first court’s decision, which would “impede the ability of the nonparty class members to protect their interests” [41]. One may argue that many of the complex scientific issues regarding the loss of herd immunity may justify certification.8

The HPV Vaccine and Lawsuits against Specific Individuals

Since an extremely large number of individuals suffer damages resulting from and contribute to the loss of herd immunity, most potential lawsuits seeking to recover monetary damages from individuals who used religious and philosophical exemptions as an excuse to not vaccinate their children would have to be class actions. However, the unique nature of the HPV vaccine may allow for specific individuals to file suit against other specific individuals for damages resulting from a refusal to vaccinate children.

The recently developed and licensed HPV vaccine, though primarily developed to prevent cervical cancer, has ignited a significant amount of controversy since it also has the ability to prevent genital warts that are also caused by HPV [42]. While many medical professionals and social activists believe that this vaccine is an important public health tool and mandating it as a prerequisite for starting high school would greatly reduce the number of cervical cancer victims,9 several prominent social conservative advocacy groups, such as Focus on the Family and the Family Research Council, believe that mandating a “genital warts vaccine” would both undermine abstinence messages and force children to “undergo an intervention that may be irreconcilable with [their] family’s religious values and beliefs” [42]. Despite such protests, the Michigan state senate has already passed a bill that would mandate the HPV vaccine for girls [43], though families would still have the opportunity to use Michigan’s vaccine exemption statute to opt-out of the vaccine — a statute that allows for both religious and philosophical exemptions [43].

Religious, cultural, and philosophical opposition to the HPV vaccine is thus distinct from opposition to other vaccines. Though genuine opposition to mandatory vaccination for diseases such as polio is primarily rooted in religious objections to the act of vaccination, most opposition to the HPV vaccine stems not from the actual act, but from a fear of the message the vaccination sends to children who are on the verge of becoming physically capable of sexual activity.10 Given that such opposition comes from groups traditionally not opposed to vaccination, it is possible that in many areas, the HPV vaccine, even if mandated, will never result in herd immunity being achieved at all in a large number of communities.11

The HPV vaccine situation, however, is also unique in that affliction with the diseases the vaccine is intended to prevent potentially can be traced back to specific individuals. HPV — including the strains of HPV that cause genital warts and cervical cancer — is primarily spread through sexual contact. Boys, though sometimes not showing symptoms themselves, may become infected with an HPV strain and transmit it during sexual activity to a girl, who may then develop genital warts or even cervical cancer [23]. Although the Food and Drug Administration has not yet approved the HPV vaccine for boys, such approval is expected eventually, and once granted, it is likely that activists would lobby states to require the vaccine for both girls and boys [23]. Given that boys may act as carriers of HPV, one can easily envision parents of girls (or girls themselves) — particularly those from districts or states that do not mandate the HPV vaccine — filing lawsuits against specific boys (and their parents) who should have been immunized from HPV due to a state mandate but used a religious or philosophical exemption to avoid vaccination.

One serious obstacle to such lawsuits involves the consent defense to the tort of battery. Courts, when faced with lawsuits involving a plaintiff suing a defendant for infecting her with a sexually transmitted disease, generally have held that the plaintiff, by consenting to sexual intercourse, also has consented to the possibility of receiving a sexually transmitted disease, unless the plaintiff can prove the defendant misrepresented himself, such as by claiming he is disease free [45]. Such cases, however, were decided prior to the HPV vaccine’s development, and certainly before any jurisdictions contemplated mandating such a vaccine as a prerequisite to high school enrollment. Courts, when faced with a lawsuit involving this new set of facts, may find that a plaintiff, knowing that the state has mandated the HPV vaccine, had reason to believe the defendant male also was vaccinated, and, thus, the defendant male and/or the defendant parents should be found liable for not obtaining a vaccination and not informing the plaintiff about the lack of immunity, regardless of whether the defendant actually knew he was an HPV carrier.

  • o 

Is Tort Law a Desirable Remedy?

Although some may question whether tort law is the appropriate remedy for this problem, one must acknowledge that allowing such causes of action would be consistent with the primary purposes of tort law. The specter of tort liability provides a strong deterrent to engaging in risky behavior that may have a negative impact on other members of society [46]. Just as the defamation torts deter newspapers and other media from recklessly publishing lies about individuals and products liability doctrine deters manufacturers from developing and selling unsafe products, finding individuals liable for using religious and philosophical exemptions to vaccinating their children would deter many parents, particularly those who use such exemptions merely for convenience and not due to a sincere religious objection, from the risky practice of not immunizing their children — a very desirable outcome, given the benefits of herd immunity and the high costs of treating otherwise preventable diseases.

Perhaps more importantly, assessing such liability is consistent with tort law’s overarching goal of “assign[ing] responsibility for injuries that arise in social interaction” and “provid[ing] recompense for victims with meritorious claims” [46]. While states can easily justify respecting genuine religious objections to vaccination, it is far more difficult to justify not allowing those who have suffered tangible harm from those religious objectors to receive compensation for their very real injuries. Though some may feel uncomfortable with the practice of allowing individuals to be successfully sued for practicing their genuine religious beliefs, one must remember that this is not a new concept, for courts already have found that practicing one’s religious beliefs in certain situations may work against an individual in a tort suit, for individuals make a conscious choice to assume the “specific risk” inherent in following their religion’s tenets [47].12

Concluding Remarks

Over the past three years, state governments have taken substantial steps toward promoting herd immunity by placing new mandates upon parents, ranging from requiring additional vaccines to making vaccines prerequisites for an even larger number of activities and benefits. Most recently, New Jersey became the first state in the nation to require flu shots as a prerequisite to preschool or day care attendance [49]. Yet, during this same period, state governments increasingly have bowed to pressure from social conservatives to create broad-based exceptions that undermine the purpose behind mandatory vaccination.13 For instance, despite the known problems with statutes authorizing philosophical exemptions, the number of states with these exemptions is more likely to increase than decrease, with the New York legislature currently considering a bill that would make New York the 19th state to allow exemptions for philosophical reasons [51].

Tort law, though perhaps not as effective a remedy as outright state government intervention, has the potential to be the best method of preventing religious and philosophical exemption abuse and compensating victims of vaccine-preventable disease outbreaks that has a realistic chance of being implemented. Class action lawsuits, and perhaps lawsuits against specific individuals, would more closely align the interests of those considering religious and philosophical exemptions with those of the rest of the society, thus reducing the number of exemptions of convenience. Such lawsuits also would provide a mechanism for those who do take such exemptions to the detriment of others to compensate such individuals for the harm they have suffered, resulting in a more equitable distribution of costs than today.

Footnotes

1However, even members of religions that do not prohibit vaccination have attempted to obtain religious exemptions to mandatory vaccinations, with mixed results. Compare Berg v. Glen Cove City Sch. Dist., 853 F.Supp. 651, 655 (E.D.N.Y. 1994) (granting a Jewish parent a religious exemption even though Judaism does not object to vaccination) with Farina v. Bd. of Educ., 116 F.Supp. 2d 503, 508 (S.D.N.Y. 2000) (finding that Catholic parents were not eligible for a religious exemption since their refusal to vaccinate their child was not for religious reasons) and McCarney v. Austin, 293 N.Y.S.2d 188, 200 (N.Y. 1968) (holding that New York’s religious exemption law does not exempt Catholics since the Catholic faith does not prohibit vaccination).

2Unspecified personal reasons make up 95 percent of all mandatory vaccine exemptions granted in the state of Washington [9].

3The U.S. Supreme Court has held that a state’s interest in promoting public health overrode an individual’s right to opt his or her child out of a vaccine for religious reasons, for “[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death” [10].

4The percentage needed varies by disease — achieving herd immunity from measles, for instance, would require that 90 percent of a community be immunized [11].

5Some of the states that have codified such exemptions are Arizona (Ariz. Rev. Stat. Ann. § 15-873), California (Cal. Health & Safety Code § 120365), Idaho (Idaho Code § 39-4802), Louisiana (La. Rev. Stat. Ann. § 17:170(E)), Maine (Me. Rev. Stat. Ann. Tit. 20-A, § 6355), Michigan (Mich. Comp. Laws Ann § 333.9215), Minnesota (Minn. Stat. § 121A.15), Nebraska (Neb. Rev. Stat. § 79-221), North Dakota (N.D. Cent. Code § 23-07-17.1), Ohio (Ohio Rev. Code. Ann § 3313.67.1), Oklahoma (Okla. Stat. Tit. 70 § 1210.192), Vermont (Vt. Stat. Ann. Tit. 18, § 1122), Washington (Wash. Rev. Code. § 28A.210.090) and Wisconsin (Wis. Stat. Ann. § 252.04)

6The only requirement for joining the Congregation of Universal Wisdom is a “customary donation” between $1 and $75 — one does not even have to abandon his or her old religion or adopt any new religious tenants [21].

7The United States, in addition to possessing a strong respect for freedom and individual rights, is also a highly religious nation [7]. Public opinion polls show that only 17 percent of Americans believe religion has too much influence, with 49 percent believing religion is actively under attack [12]. Since “politicians simply cannot afford to not take political considerations into account when deciding what bills they should support,” it is unlikely that all 48 states with religion exemptions would completely repeal them anytime in the near future [26].

8Furthermore, the immense benefits of litigating such disputes as class action lawsuits may justify alterations to federal and state rules of civil procedure in order to allow such suits to proceed.

9For instance, Juan Carlos Felix, the head of the National Cervical Cancer Coalition’s medical advisory panel, has stated that he “would like to see it that if you don’t have your HPV vaccine, you can’t start high school” [42].

10The Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention has recommended the vaccine for girls between 11 and 12 years of age [44].

11One can analogize the HPV vaccine to the hepatitis B vaccine, which has not been terribly effective at reducing incidence of the disease because social conservative opposition has prevented universal vaccination [44].

12Furthermore, one must also consider that the U.S. Supreme Court has held that an individual’s right to practice his religion freely is subordinate to preventing the spread of communicable disease in a community [48].

13For example, the state of Texas, which had been set to become the first state in the nation to mandate the HPV vaccine, rescinded its mandate several months after it was announced, due to pressure from social conservative groups [50].

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