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Vaccine Law & Policy Ross D. Silverman, JD, MPH SIU School of Medicine November 4, 2006 PowerPoint Presentation
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Vaccine Law & Policy Ross D. Silverman, JD, MPH SIU School of Medicine November 4, 2006. John McPherson. Outline. Background Exemptions based on religious or moral grounds Recent developments Are we near the tipping point? Policy Options

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Vaccine Law & Policy Ross D. Silverman, JD, MPH SIU School of Medicine November 4, 2006

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Vaccine Law & PolicyRoss D. Silverman, JD, MPHSIU School of Medicinersilverman@siumed.eduNovember 4, 2006

John McPherson

(c) 2006 RD Silverman

  • Background
  • Exemptions based on religious or moral grounds
    • Recent developments
    • Are we near the tipping point?
  • Policy Options
  • Vaccine Shortages, Bioterrorism & Avian Flu

(c) 2006 RD Silverman

brief history u s policy
Brief HistoryU.S. Policy
  • Top Public Health Achievement of 20th Century
  • Mandatory for entrance into public schools, licensed day care and pre-schools (Head Start)
  • Variations from state to state

(c) 2006 RD Silverman

herd immunity
Herd Immunity

(c) 2006 RD Silverman

legal authority to require vax due process equal protection
Legal Authority to Require VaxDue Process & Equal Protection
  • Jacobson v. Massachusetts (1904)“[Liberty] does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”197 U.S. 11, 14
  • Zucht v. King (1922) - vaccination of children

(c) 2006 RD Silverman

religion vaccination judicial
Religion & Vaccination - Judicial
  • Prince v. Massachusetts (1944)“Parents may be free to become martyrs themselves. But it does not follow [that] they are free… to make martyrs of their children.” 321 U.S. 158, 170.

(c) 2006 RD Silverman

immunization law different
Immunization Law.Different.

Public health is different

  • “Organized to provide an aggregate benefit to the health of all the people in a community.” (Gostin)

Public health law is different

  • Police Powers • Courts loathe to review • Slow/subtle

Immunization of children is different

  • Medical tx, preventive tx, patient & parental rights, privacy, state interests, informed consent

Immunization law is different

  • legislatures pass laws, health departments & boards determine mandates & exemption process, schools enforce

(c) 2006 RD Silverman


 law focus on individual rights

 side effect concerns

expanded exemptions

 in exemption use/  enforcement

Unprotected Pool

Population Protections from Vaccine-preventable Infectious Disease

(c) 2006 RD Silverman

exemption laws 2004
Exemption Laws 2004

(c) 2006 RD Silverman

three states recently in the news
Three States Recently In The News
  • New York – where does religion end and philosophy begin?
  • Wyoming – no investigation into beliefs
  • Arkansas – no religious exemption at all >> new vaccination law

(c) 2006 RD Silverman

religion administrative issues

What is “religion”?

Religion: Administrative Issues











How can religious beliefs be assessed?

(c) 2006 RD Silverman

what s the difference between a personal belief and a religion whatever the judge says it is
Turner v. Liverpool Central School District(S.D.N.Y., March 2001)

Congregation of Universal Wisdom

Two-pronged analysis for religious exemption - Is the belief religious? Genuinely and sincerely held?

judge can’t assess credibility

any arguably religious belief must be considered religious

belief does not have to fall in line with any particular dogma, only genuinely and sincerely held.


No regular meetings

Low parent knowledge of religion

Parent history of inconsistent action regarding her beliefs

Parent testimony re: vax “inconsistent and ever changing”

Beliefs closely tied to chiropractic ethic

Court ruled in favor of the parent and determined belief was religious

What’s the difference between a personal belief and a religion?(Whatever the judge says it is.)

(c) 2006 RD Silverman

conclusions re religion
Conclusions re: “Religion”
  • Low threshold for exemption
  • “Magic words”
  • No discernable difference between religion & moral exemption

(c) 2006 RD Silverman

lepage v wyoming jones v wyoming st dept of health march 2001
LePage v. Wyoming &Jones v. Wyoming St. Dept. of Health(March 2001)
  • Wyoming statute: Waivers shall be authorized by the state or county health officer upon submission of written evidence of religious objection or medical contraindication to the administration of any vaccine.
  • Court: all the applicant must do is submit the form and the state must approve. State may not ask for reasons or investigate.

(c) 2006 RD Silverman

mccarthy v boozman boone v boozman arkansas 2002
McCarthy v. Boozman Boone v. Boozman(Arkansas 2002)
  • The provisions of this section shall not apply if the parents or legal guardian of that child object thereto on the grounds that immunization conflicts with the religious tenets and practices of a recognized church or religious denomination of which the parent or guardian is an adherent or member.
  • Courts: Unconstitutional. No religious exemption permitted for anyone.

(c) 2006 RD Silverman

the tipping point one media event away
Parents with little exposure to illnesses

Media interest

Internet - health care info

Distrust of government


Cost of containment

Increased use of opt-outs when available

Smallpox side effects discussion

The Tipping Point:One Media Event Away?

(c) 2006 RD Silverman


Health professionals

with limited working

knowledge of many


infectious diseases

(c) 2006 RD Silverman

John McPherson

state enforcement of laws rota et al 2001 hogan 2005
State Enforcement of LawsRota et al, 2001, Hogan 2005
  • Process to get exemption in many states easier than getting vaccinated
    • More complicated exemption process leads to lower exemption rates
  • 28 states – no authority to deny exemption request – only 16 states reported ever denying
  • 34 states did not require renewal of exemption
  • Only 9 states reported giving parents info about dangers of not vaccinating

(c) 2006 RD Silverman


August 2, 2003







Katherine Zeta-Jones and Michael Douglas speak for the first time about their struggles following the mysterious, tragic illness of their daughter Carys, and why parents should think twice before saying “yes” to the next shot.

(c) 2006 RD Silverman

give individual freedom with one hand take away public health protection with other colorado
Give individual freedom with one hand, take away public health protection with other (Colorado)
  • % of Religious exemptions dip slightly from 1987-1998; however, philosophical exemptions increase by 83%
  • Philosophical exemptions rise from 74% to 87% of total exemptions
  • Relative Risk for Measles 22x greater for child exemptors; 5.9 x for pertussis (however, 62x greater and 16x greater, respectively, for children of day care and primary school age)
  • Annual incidence rates significantly associated with frequency of exemptors
  • 11% of vaccinated children known to have contracted measles from exemptor (67% unknown exposure source)

Feikin, et. al., JAMA 284:3145-3150 (2000)

(c) 2006 RD Silverman

arkansas students requesting exemptions from school immunization
Arkansas Students Requesting Exemptions from School Immunization

(c) 2006 RD Silverman

michigan hard policy choices
Michigan - Hard Policy Choices

MI Dept. of Community Health

(c) 2006 RD Silverman


The future

of infectious

disease control?

John McPherson

(c) 2006 RD Silverman

additional vaccine issues
Additional vaccine issues:
  • Distrust of the vaccine system generally
  • Vaccine supply & liability
  • Bioterrorism
    • Anthrax
    • Smallpox
    • BioShield
  • Avian Influenza & Pandemic preparedness

(c) 2006 RD Silverman

  • Exemptions in general, esp. moral, more frequently obtained
  • Blurring of line between “religious” and “philosophical,” coupled with little scrutiny of declarations, make exemptions easier to get even in states w/o “moral” grounds
  • Political & legal environment, while sympathetic to public health concerns, still underfunds public health and prioritizes individual interests over community health
  • Most protective political solution unlikely absent epidemic; therefore should fight for as robust an exemption process as possible
  • New & untested vaccines for use in emergency circumstances will place significant additional pressures on public health education efforts and risk goodwill
  • Distrust in vaccines undermines all types of public health & emergency planning

(c) 2006 RD Silverman

  • Silverman RD. No more kidding around: restructuring non-medical childhood immunization exemptions to ensure public health protection. Ann Health Law. 2003 Summer;12(2):277-94.
  • Feikin DR et. al. Individual and community risks of measles and pertussis associated with personal exemptions to immunization. JAMA. 2000 Dec 27;284(24):3145-50.
  • Rota JS et al. Processes for obtaining nonmedical exemptions to state immunization laws. Am J Public Health. 2001 Apr;91(4):645-8.
  • Salmon DA et al. Knowledge, Attitudes, and Beliefs of School Nurses and Personnel and Associations With Nonmedical Immunization Exemptions. Pediatrics. 2004 Jun;113(6):e552-9.
  • Fredrickson DD et al. Childhood Immunization Refusal: Provider and Parent Perceptions. Fam Med. 2004 Jun;36(6):431-9.
  • Arkansas Statutes, § 6-18-702. Immunization. 2004.

(c) 2006 RD Silverman