Public Interest

It's Time For An Organized Legal Response To Anti-Vaxxers

A new area of public interest.

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Sometimes I write about cases that aren’t necessarily in the field of what we might call “public interest law” but probably should be. Earlier this week, Above the Law covered one such case — a case that, I think, deserves more attention as a symptom of a broader societal issue that’s practically crying out for an organized legally-oriented response.

Which case am I talking about? The New York Supreme Court case striking down New York City’s flu-vaccine mandate, of course.

As a brief recap, according to the New York Times, “a new city requirement” that was “quietly adopted by the city’s Department of Health and Mental Hygiene in the waning days of Mayor Michael R. Bloomberg’s administration” would have resulted in young children being excluded from daycares and preschools unless they’d received flu shots. The reason for this new requirement? The Times says that “the city had been lagging behind the national average in preschool flu immunization rates” and that a similar program passed in Connecticut “raised vaccination rates among young children to 84 percent from 68 percent, and reduced hospitalizations from the flu by 12 percent.”

Another Times article reports that, though the new rule passed unanimously and at first received little attention — positive or negative — a while after it passed it began to meet “fierce opposition.” The reason for the opposition?  According to the Times, “some of the most vocal critics were those who believe vaccinations are linked to autism, although there is no scientific evidence that shots and the disorder are connected.” (Popular culture knows these people as anti-vaxxers.) Nevertheless, the rule was set to kick in in January.

So, of course, some parents sued. Then last week, just in time to forestall the rule from going into effect, a New York Supreme Court Justice granted those parents’ wish and struck down the law. And while the court’s opinion makes sense as a matter of law, its effect is terrible as a matter of public policy.  

On the first point, the opinion makes sense as a matter of law in part because it is limited in its analytical scope. It doesn’t speak to the substance of New York’s attempt to curb the flu among small children. And it doesn’t hold that mandatory flu vaccines are a religious-liberty infringement or some other gross violation of individual rights. Instead, it says that New York City ventured into territory that exceeded its authority under state law. That’s reasonable enough.

But on the second point, the opinion’s effect is terrible as a matter of public policy because it not only ignores the decision’s broader effects, but actually lends credence to some of the parents’ policy arguments in considering whether to issue an injunction preventing the flu-vaccine rule from taking effect. In fact, it appears to hold that forcing parents to inoculate their children against the flu constitutes irreparable harm. That’s nonsense. Not only are vaccines a boon to those receiving them, but they’re a boon to the entire population when more people receive them. They’re a boon even to folks who, against all medical and scientific evidence, deny vaccines’ effectiveness and irrationally link them to negative health outcomes. And the flip side is true, too. The more you leave vaccination to chance, the less benefit vaccines offer to the public — including the majority of people who accept science and recognize that vaccines work.

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And that’s why we need an organized legal response to the so-called anti-vaxxers. Their wrongness harms everyone. Overcoming their wrongness helps everyone — even them.

But while there are plenty of organizations out there advocating in favor of vaccines and singing paeans to their effectiveness, there seems to be a void in the field of pro-vaccine legal advocacy. We need a savvy and well-informed organization to keep an ear out for cases like the one in New York and intervene or file amicus briefs. Maybe that happened here — I don’t know for sure. But perhaps an amicus brief would at least have prevented the Justice who issued the recent New York decision from writing that, if the rule had stood, the parents would have been “irreparably harmed by being forced to have their children take the flu shot or forego day care and/or kindergarten,” when science tells us that vaccination would actually have benefited both the children and New York residents at large.

So, whaddaya think. Anyone out there want to start a national organization dedicated to fighting anti-vaxxers’ court efforts to undermine public health?

Earlier: Did A New York City Judge Just Give A Victory To Anti-Vaxxers?

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