Liability for Exercising Personal Belief Exemptions from Vaccination
posted by Michigan Law Review
The Michigan Law Review’s companion journal First Impressions has published an online symposium on Liability for Exercising Personal Belief Exemptions from Vaccination.
Recent outbreaks of diseases such as measles, mumps, and pertussis, which have mostly been eradicated in the United States for decades, have called attention to the increased use of personal belief exemptions (sometimes called philosophical exemptions) to childhood vaccination requirements. Twenty states, including Michigan, allow personal belief exemptions, in addition to the medical exemptions allowed by every state. Since the 1990s, parents have increasingly used these personal belief exemptions, often related to an unproven belief that vaccines are linked to autism and other disorders. An outbreak of the disease can sicken not only children who are unvaccinated, but also children who have received the vaccine. While in the past, unvaccinated children were more likely to be low-income, increasingly more are higher-income and their parents well-educated. With the increased risk that the use of personal belief exemptions will limit the effectiveness of vaccination, this symposium addresses whether parents who refuse to vaccinate their children should be liable in tort to individuals who are infected and injured by the unvaccinated children.
The extended post contains a more complete description of the symposium and links to the essays.
• Douglas S. Diekema of the Seattle Children’s Hospital applies his medical expertise to the question of tort liability for personal belief exemptions and explains how such exemptions might fit the elements of negligence in tort law.
• Pediatrician Jay Gordon privileges parental choice over concerns about the possible harms from the use of vaccine personal belief exemptions, arguing against holding parents liable for the use of the exemptions.
• Jason L. Schwartz of the University of Pennsylvania Center for Bioethics warns that the use of tort liability to combat the overuse of personal belief exemptions may undermine efforts to promote vaccination by hardening opposition to childhood vaccination and by exacerbating misplaced alarm about such vaccinations.
• Alexandra Stewart of the School of Public Health and Health Services at the George Washington University Medical Center proposes that public nuisance law might be an effective and appropriate remedy to address harms caused by parental use of personal belief exemptions.
• Stephen P. Teret and Jon S. Vernick of the Johns Hopkins Bloomberg School of Public Health claim that the deterrent effect of tort liability makes it an advisable solution to the foreseeable and preventable harms that the use of personal belief exemptions can cause.
• Daniel B. Rubin and Sophie Kasimow of the University of Michigan Law School identify a possible problem with the use of individual tort liability to address the harms caused by personal belief exemptions—that imposing such liability might undermine the sense of collective well-being necessary to maintain sufficient childhood vaccination rates.
To download a PDF of the entire symposium, feel free to click here.
Additional First Impressions content is available at http://www.michiganlawreview.org.
February 9, 2009 at 6:44 pm
Posted in: Law Rev (Michigan), Law Rev Forum
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Responses (2)
Adam - February 9, 2009 at 11:36 pm
The link between autism is more than “unproven,” it has affirmatively been shown to be based in fraud and deceit:
http://www.timesonline.co.uk/tol/life_and_style/health/article5683671.ece
For an excellent refutation of the so-called vaccine-autism link, see this amazing book:
http://www.amazon.com/Autisms-False-Prophets-Science-Medicine/dp/0231146361/ref=pd_bbs_sr_1?ie=UTF8&s=books&qid=1231952343&sr=8-1
If people want to act irrationally on the basis of whim worship or anti-science prejudice, then they should be held accountable when their actions cause real harm to other people.
Elaina - November 21, 2011 at 12:47 pm
In the case of outbreaks of vaccine-preventable diseases such as pertussis (around which the media has centered this issue in the last year or so) it would be difficult if not impossible to prove that an outbreak was the fault of unvaccinated children. Pertussis outbreaks are known to be cyclical in nature and impossible to conclusively source. There are even studies which have shown asymptomatic *vaccinated* children to be the likely source of infection of other children (See for one example: http://wwwnc.cdc.gov/eid/article/6/5/00-0512_article.htm) Are outbreaks of vaccine-preventable disease really so easy to conclusively link to unvaccinated children? Do we have enough of a scientific consensus on the methods and sources of transmission? Unless and until we do, the attempt to frame this as a tort liability issue will not serve science or public health and wellness so much as it will our somewhat indescriminate collective anxiety over disease, and certain ideological perspectives which we use to combat those anxieties. Another way to frame this: what chance do we have of proving fault, would it be *honest*, and would public health not be better served and promoted in other ways? …All of this plus the issue of government coercion, which amounts to forcing medical procedures on individuals… You all have a lot to discuss.
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