Highlighting A Law Professor Who's Helping To Support Vaccination

The public interest fight for vaccinations has already begun.

After last week’s column calling for an organized legal response to the anti-vaccine movement, I received an intriguing email. Professor Dorit Reiss of UC Hastings College of Law let me know she’d been working on the issue and would be happy to tell me more about how the law can help support vaccination efforts.

Professor Reiss has done extensive research and published several articles on the legal issues that can be posed by vaccines. One especially useful article she recently co-authored explains the basis for states’ broad power to regulate vaccines in children and concludes with a table setting out the various tools that states can use to increase vaccination rates. Another article she recently co-authored proposes several mechanisms for shifting the public-health costs of non-vaccination onto the shoulders of those who choose not to vaccinate themselves or their children.

Naturally, I wanted to hear more. So I followed up with some questions. And even though Professor Reiss’s work on this topic has provoked efforts to get her fired, phone threats, and what she describes as other “fun emails and comments — the usual,” she was very forthcoming. After all, she says, “haters gonna hate.”

Here’s what she told me.

ATL: Please give us a quick snapshot of your background.

DR: I was born in Israel, and did my undergraduate — in law and political science — in the Hebrew University in Jerusalem. I then did my Ph.D. in the Jurisprudence and Social Policy program in UC Berkeley, and my dissertation looked at agency accountability. I started working in UC Hastings in 2007, teaching torts, administrative law, comparative law and some seminars and writing about administrative law and regulation — national and comparative.

ATL: How did you get interested in legal issues surrounding vaccines?

Sponsored

DR: I had my son in 2010, and got very interested in reading parenting blogs. I learned about the anti-vaccine movement through a parenting blog in mid 2012, and after reading more about it I started commenting online. Eventually, I decided that if I’m going to spend so much time responding to vaccine issues, I should and can move my professional focus that way. My first article on the topic looked at whether there should be tort liability for harms from not vaccinating.

ATL: What are some key takeaways from your research?

DR: States have extensive leeway to impose consequences on parents who do not vaccinate children, though they probably have less leeway to act against non-vaccinating adults.

We have focused on school immunization requirements as the main tool against non-vaccination. That makes sense, since school immunization requirements are very effective, but it’s a narrow focus: there are many other tools at our disposal, and we should consider using them. For example, imposing costs is a potentially very powerful tool we have not used. I think we should seriously discuss ways to impose the costs of not vaccinating on those who choose that route.

Another thing to consider is using existing tools to protect people from misinformation promoted by anti-vaccine organizations and doctors. Doctors can be held liable in torts if their misleading anti-vaccine claims and advice causes harm. Consumer protection laws can be used to force anti-vaccine organizations to be truthful and not misrepresent, or impose sanctions if they do misrepresent. I’d like to see some FTC action against groups that mislead for commercial purposes. Australia, for example, recently acted against a group that made claims about homeopathic alternatives to vaccines.

Sponsored

The anti-vaccine movement is very dedicated, and although a minority, they are passionate and mobilize to support their claims. The pro-vaccine majority tends not to realize that a fight is even needed — often, there is no real citizen counter to anti-vaccine efforts. The California battle around SB277 was an exception — there were distinct pro-vaccine grass roots efforts.

Why? For the same reason we don’t have a vigorous pro-seatbelt movement. Most people realize vaccinating is good and important and it seems so obvious they don’t see why it needs fighting for.

That said, I think we may be seeing a change in progress, as a result of the Disneyland measles outbreak. I’m seeing a difference — more articles speaking up for vaccinating, more commentators responding to anti-vaccine comments on articles. I was encouraged to see your call for a legal pro-vaccine organization, because I think that’s a gap — there are some dedicated anti-vaccine lawyers and not much (though some) legal pro-vaccine action.

ATL: Has there been anything interesting going on at the state level?

DR: This year saw a lot of activity — both legislative and administrative. Naturally, most proposed legislation fails — it’s always harder to pass legislation than stop it. But there is a lot going on. The biggest successes are probably SB277 in California, removing the non-medical exemption, and SB792 in California, requiring that daycare workers be immunized, Vermont’s removal of the philosophical exemption, and the rule change in Michigan [making it tougher to obtain a waiver of the state’s school vaccination requirement]]. Legislation failed in Oregon, Washington, Texas and Maine among others. But I know that at least some states are likely to try again. Anti-vaccine legislative efforts also failed in Maine, New York, and elsewhere.

ATL: How about in court?

DR: There is a case of workers attacking influenza mandates that are apparently planning to sue.  I don’t know of challenges to SB277. but I expect them to happen.

Last year the biggest one was Phillips v. New York [in which the Second Circuit upheld New York’s state-level school vaccine mandate against a very broad challenge], and the Supreme Court’s refusal to grant cert.

ATL: Do you have any favorite legal approaches to vaccines?

DR: In an ideal world, I would like to see states have an extremely hard to get personal-belief exemption that will only be used by the most extreme and hard core anti-vaccine activists. For example, require a three-day course with a quiz before allowing an exemption. I worry that that’s not feasible from either direction: it may be too hard to put in place and enforce or too politically non-feasible. So my next best option would be either no non-medical exemption in states that can go there or a personal belief exemption that’s surrounded by procedural hurdles — for example, requiring annual renewal, requiring notarization, and requiring a detailed letter explaining the basis, rather than just a “check the box” form. A recent article by Yang and Silverman mapped out the ways to narrow exemptions. I also like cost-imposing schemes: tort liability or no-fault options.

I think religious exemptions are a very bad idea, both because they are vulnerable to abuse, encourage and reward lying, and because, as a matter of principle, a parent’s religious beliefs aren’t a good reason to leave the child at risk.

ATL: Have you been involved in any vaccine litigation?

DR: Not directly. I’m not a lawyer — I never took the bar — so I’m unlikely to be involved directly. I have helped people with problems to find lawyers. For example, people who have custody battles where one parent wants to vaccinate and another doesn’t. I’ve talked about issues at a general level with lawyers.

I have written about the topic and I hope my articles will help with cases. For example, I addressed the issue of the right to education in the context of SB277.

ATL: Do you know of any efforts from pro-vaccine groups to get involved in litigation, proactively or reactively?

DR: I know there are people interested in and looking at ways to do this. In the meantime, I’ve tried to put together a listserv of interesting people to be available to help with that. If you know anyone who is doing this, I’d love to work with them.

ATL: Thank you!

So: if you’re interested in getting involved in the nascent organized legal response to the anti-vaccine movement, please let Professor Reiss know! You can reach her at reissd@uchastings.edu.

(A final note: Professor Reiss asked me to add in the interest of full disclosure that her family’s stock portfolio includes GSK, a vaccine manufacturer.)


Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.