Oregon vaccination bill SB 132: looks good on paper, but ambiguous language and open liability questions leave room for improvement

Oregon, finally taking action on widespread non-medical child vaccination refusals, has passed a revision to its vaccination requirement laws that imposes some interesting new requirements on parents who want to use non-medical reasons to excuse their children from vaccinations. Under the old system, all that parents had to do in order to prevent their children from getting potentially life-saving vaccinations and still go to public schools was sign a free waiver claiming some kind of nonspecific religious affiliation that forbids vaccinations. With virtually no regulatory oversight, ease of access, and an inability of state health agencies to combat the inexorable propaganda arm of the anti-vaccination crowd, rates of unvaccinated children in Oregon are very high, more than five times the national average. The problems with such a system are tragically obvious: pertussis epidemics, weakened herd immunity, converging on the sad and detestable fact that philosophical, religious, and non-scientific objections to vaccinations hurt children.

But really the only thing that saves the entire national vaccination scheme from destruction at the hands of the First Amendment’s religious protections is that people with religious beliefs are exempt. A vaccine system without a religious exemption would be both politically impossible and Constitutionally problematic. But when you leave a hole in the vaccination scheme for any parent whatsoever who wants to avoid vaccinations for whatever reason, including non-religious pseudoscientific objections to vaccinations, you get problems so serious that they almost amount to the same thing. Case in point: Oregon. When the number of immunized members of a population drops below a certain threshold (“herd immunity”), the unvaccinated persons provide a large enough biome for that disease to not just infect the unvaccinated persons, but to mutate and evolve in their bodies and then spread to vaccinated people, since the vaccine is targeted to the pre-mutation disease.

In short, a vaccine program that doesn’t get to herd immunity levels is worthless, but a program that doesn’t have a religious exemption is impossible. So, what’s a state government to do?

SB 132‘s approach is pretty clever. Instead of just ending the exemption, it requires everyone – religious or not – who wants their children out of the vaccine program to either get the signature of a “practitioner of healing arts” saying that the parents have been provided with factual information provided by the state about the safety and importance of vaccines, or to complete an online course in vaccine safety and importance, which comes with a certificate of completion.

In an ideal world, this system strikes a good balance: those with religious objections to vaccines aren’t objecting on grounds of safety or importance so getting that information can’t interfere with their religious beliefs, and those objecting for pseudoscientific reasons are objecting on grounds of safety or importance, and so a little education can only help to nudge them in the direction of public safety. Right?

I am irked by some ambiguities in the language of the bill. Firstly, while the bill clearly states that the online education module parents can complete in order to opt out of the vaccine program must be prepared and provided by the state health authorities, and so will likely be accurate. Instead of the online module, however, parents can get a signed statement from a medical practitioner saying that information has been provided to the parents, instead of taking the state-authored course. But it says nothing about what kind of “information” a “practitioner of the medical arts” must “provide” for the waiver to be effective.

  • The bill says that the information must be about the “risks and benefits of immunization.” But who screens this content? The bill doesn’t say. Does the information have to give “equal time” to both scientific and nonscientific assessments of vaccine safety? The bill doesn’t say. Does the information even have to be accurate? The bill doesn’t say! And if it does have to be accurate, who gets punished for the inaccuracy of the information when a child gets hurt – the parent? The publisher of the information? The doctor?
  • What is a practitioner of the medical arts? The bill does not say, and the phrase is so awkward and ambiguous that it seems clear to cast a wide net. Does information qualify if it comes from your homeopath? What about from your snake-handling faith-healer? Or from your great-aunt Gertie, the one who gave you chicken noodle soup when you were home sick from school?
  • How does the doctor know when information has been provided to the parent, and who provides it? What if the parent gets the information from the internet and tells their doctor that they’ve read about vaccines already? What if it’s a book published by the anti-vaccination crowd? What if the doctor gives the parent a stack of accurate, reliable, and well-vetted information from prestigious national and international medical bodies extolling the virtues of vaccination, and the parent drops them in the trash can on the way out of the office – is that providing information on vaccines?

Unfortunately, these questions will likely have to be resolved through litigation, which of course means that somebody has to get hurt, and somebody has to get punished, before we get clear answers to these questions.

But that raises the obvious next question of liability. Suppose a doctor gives a parent information showing that vaccines are safe and important, per the doctor’s good-faith attempt to follow the rules of a good-faith vaccination bill, but then that parent’s child ends up getting sick or even dying from a vaccine allergy. Will doctors be chilled from giving out even reliable vaccination information? The bill says nothing about liability shields for information-providers (which, I’m annoyed to say, could have been solved if the Oregon legislature had just stuck the word “accurate” in there!), or for doctors. Are doctors allowed to refuse to sign the waiver forms, even if they’ve provided the educational information? If they are, who accounts for the rights of the religious waivers, and if they aren’t, who accounts for the conscience of a doctor?

I like SB 132. I like where its head’s at. But the bill is taking on a difficult task: balancing the Constitutional rights of those whose religions put everyone else at risk, against the equally dangerous but less-protected desires of those whose secular pseudoscientific beliefs put everyone else at risk. If we see an uptick in the Oregon vaccination rates by even the slightest degree, the bill is a success. But I’m much more confident that we’re going to see an uptick in litigation before we see the health outcomes.

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