Expert Panel at YLS Examines U.S. Vaccine Law and Policy

On February 13, 2020, the Solomon Center for Health Law and Policy and the Yale Global Health Justice Partnership co-hosted a panel discussion exploring vaccine law and policy in the US through a human rights and health justice lens. The event represented a variety of perspectives, featuring moderator Professor Jason Schwartz, of the Yale School of Public Health and panelists Professor Michelle Mello, of the Stanford Law School and School of Medicine; Dr. Saad B. Omer, of the Yale Institute of Public Health; and Professor Alison M. Buttenheim, of the University of Pennsylvania School of Nursing. The panel covered recent trends in vaccine refusals through different frameworks including behavioral economics, epidemiology, and state law litigation.

Professor Alison Buttenheim is a public health researcher and behavioral epidemiologist at the University of Pennsylvania, who combines her interest in behavioral economics with a focus on improving child health. She kicked off the panel by discussing sources of parental mistrust in vaccines. The media often portrays this as a misguided concern about autism, but Professor Buttenheim showed that it is more frequently linked to a concern about babies being exposed to too many shots. Combined with a rise in individualized thinking, particularly for parents of a high socioeconomic status, and social media echo chambers, parents today are dismissing the health benefits of vaccines at record levels.

Professor Buttenheim discussed the public health toolkit that could be used to reverse this trend, including educating and informing parents about the health implications of their choices, signaling the importance of vaccination through pediatricians, and broader policy levers. One example she provided involved doctors “firing” their patients if they were unwilling to vaccinate their children, which is effective as a strong signal from a medical provider but has the unintended impact of clustering the most vulnerable children as patients of a limited number of pediatricians. She also discussed the use of nudges, a concept commonly used in behavioral economics. The benefit of nudges is that they shift the choice architecture in a way that promotes healthy outcomes without restricting entirely freedom of choice. Nudges, however, are more useful when they capitalize on weak intentions to make them stronger, such as flu shots in workplaces, rather than creating or reversing intentions, as is more prevalent in childhood vaccination. She wrapped up by introducing the application of “Inoculation Theory” to the childhood vaccine space. Inoculation Theory seeks to educate the public by dismantling misconceptions by describing their logical fallacies, thus better equipping people with the skills to do so when they encounter similar misconceptions later. This has proven effective in the climate change sphere, and Professor Buttenheim is interested in using it to decrease vaccine refusal rates.

Dr. Saad Omer is the inaugural Director of the Yale Institute of Global health and a professor at the Yale Schools of Medicine and Public Health. He discussed the epidemiological impact of different state vaccine law regimes. States promote vaccination by requiring them as a condition of attending public school. States differ, however, in the types of exemptions they allow for students. The three main types of vaccine exemption are religious, philosophical, and medical. States typically permit some subset of these three, and some states, such as California, Mississippi, and West Virginia offer no exemptions at all. Adding a layer of complexity, states differ in the ease of obtaining approval of such exemptions. Some simply require a checkbox on a form, others require physician consultation.

Describing one of his New York Times articles, “How to Handle the Vaccine Skeptics,” Dr. Omer discussed ideas about more stringent requirements for exemption that could improve vaccination rates. He suggested parents sign a form that discusses the risks of non-vaccination, in-person counseling, procedures to review each request for exemption, requiring parents to write a letter elaborating reasons for exemptions, requiring completion of a state health department form, and annual renewals. Dr. Omer suggested these precautions even in the case of medical exemptions because there very few true contraindications with vaccines, many of which are temporary. His overarching plan of action would be to ensure everyone has access to vaccines, use multiple interventions, and create smart and ethical mandates that improve vaccine uptake. An example he provided was the existing National Vaccine Recovery Fund that helps compensate for any side effects using strict liability — meaning that families have ease of access to the fund in the case of injury, thus mitigating risk and making vaccines more enticing.

The panel was concluded by remarks from Professor Michelle Mello, a leading empirical health law scholar whose research is focused on understanding the effects of law and regulation on health care delivery and population health outcomes. She described recent challenges to state laws requiring vaccination. There have been eight lawsuits since 2016, most of which rely on the free exercise clause of the First Amendment to challenge the lack of or uneven application of religious exemptions to vaccination. States typically rely on cases like Jacobson v. Massachusetts (1905), in which the Supreme Court upheld a state’s police power to enforce compulsory smallpox vaccination, Prince v. Massachusetts (1944), in which the Supreme Court cited vaccine laws to demonstrate that the freedom of religion was not absolute, and Employment Division v. Smith (1990), in which the Supreme Court held that a neutral law need not be justified by a compelling interest even if it happens to impact religion. To date, no court — state or federal — has required a government to add a religious exemption to their vaccination laws, holding that the state’s compelling interest in public health prevails even over the highest level of scrutiny. Courts only require that if a religious exemption is provided in the law, that it does not discriminate among religions.

More recently, challenges to state laws have tried to portray public school vaccination requirements as a limitation on the right to education. The Federal constitution does not contain any such right; however, some state constitutions do. Professor Mello described cases such as Whitlow v. California (2016), in which plaintiffs attempted to challenged California’s Senate Bill 277 repealing California’s personal belief exemption, and Matter of Viemeister (1904), in which the court held the public health concern of small pox was imminent even though there wasn’t currently an outbreak in New York. Even in these cases, courts have found that vaccination laws are a valid exercise of the state’s police power.

“Vaccine Law and Policy: The role of law from a human rights and health justice lens” was co-sponsored by the Yale School of Public Health, the Yale Institute for Global Health, the Yale Health Law & Policy Society.