I am an alumnus of the University of Michigan twice over. I completed a B.S. in Chemistry with Honors there in 1984 and then I stayed on to do obtain my M.D. in 1988. I look back very fondly on those eight years spent in Ann Arbor, as several of my longtime friendships were forged or solidified during those years. Consequently, I still care about the place. Indeed, I even once tried to see if I could get a position in the Department of Surgery there a few years back, but unfortunately the “fit” just wasn’t there at the time. That’s why it distresses me when I see my alma mater suffer from a self-inflicted wound, almost as much as the plight of the Michigan Wolverines bothers me, given that never before in my life (at least not since I was old enough to pay attention), have the Wolverines sucked so badly and so hard. Given that level of football futility, though, I consider it even more important that my alma mater not provide any more ammunition to those who would enjoy making fun of it. It doesn’t matter to me that I never went to law school at Michigan; it’s all part of the same campus to me.
This time, the embarrassment comes in the form of an article in the Michigan Law Review by a person who has previously been a subject of posts by both Dr. Novella and me. I’m referring to Dr. Jay Gordon, whom we have both–correctly, I believe–labeled as being, if not fully anti-vaccine, at least a prominent and major apologist for the anti-vaccine movement. Unfortunately, because he is the pediatrician taking care of Jenny McCarthy’s son Evan, he has gained even greater prominence in the antivaccine movement than ever, to the point where he gave a speech last summer to the antivaccine “Green Our Vaccines” march on Washington and where he is regularly called up by TV producers to give a false “balance” whenever a discussion of vaccines and/or autism comes up. He also wrote the foreword to Jenny McCarthy’s latest paean to autism quackery and attack on vaccines as the cause of autism in which he blithely repeated some of the worst distortions of the antivaccine movement. Unfortunately, Dr. Gordon lacks the intestinal fortitude to stop the piteous denials any time he is called out for his parroting of antivaccine pseudsocience and to embrace his inner antivaccinationist. Then, at least, we wouldn’t be treated to the spectacle of his simultaneously claiming he is “pro-safe vaccine, not anti-vaccine” while at the same time saying he “doesn’t give a lot of vaccines” and admitting that parents have actually had to persuade him to vaccinate “reluctantly.”
So what was the topic of the Michigan Law Review article that Dr. Gordon was apparently asked to pen? It’s actually an interesting question from a legal, political and civil rights standpoint, specifically: Whether or not parents should be held legally liable for refusing to vaccinate their children. Not surprisingly, Dr. Gordon took the “no” position. Unfortunately, as we’ve come to expect of Dr. Gordon, he uses a number of highly dubious arguments. However, more interesting to me, having had a nearly four year history sparring online with him off and on, was the seemingly “kinder and gentler” antivaccine stance that he took in this article.
But first, let’s take a look at the debate. The symposium published in First Impressions (the online companion to the Michigan Law Review) was entitled Liability for Exercising Personal Belief Exemptions from Vaccination, and it contained the following articles:
- Choices Should Have Consequences: Failure to Vaccinate, Harm to Others, and Civil Liability by Douglas S. Diekema.
- Parents Should Not be Legally Liable for Refusing to Vaccinate their Children by Dr. Jay Gordon.
- Unintended Consequences: The Primacy of Public Trust in Vaccination by Jason L. Schwartz.
- Challenging Personal Belief Immunization Exemptions: Considering Legal Responses by Alexandra Stewart.
- Gambling with the Health of Others by Stephen P. Teret and John S. Vernick.
- The Problem of Vaccination Noncompliance: Public Health Goals and the Limitations of Tort Law by Daniel B. Rubin and Sophie Kasimow
There were a number of fascinating issues raised here. Although it’s obvious that universal vaccination is a public health policy good, given that the higher percentage of vaccinated children, the greater the herd immunity, there is always the nagging question of how far the state should go to mandate vaccination in a free society; i.e., how much coercion is acceptable to bring about maximal levels of vaccination? In other words, what is the proper balance between the needs of society as a whole and the rights of the individual? The next interesting legal and moral question is whether parents who refuse to vaccinate should be held liable for injuries to other children if their unvaccinated child passes on an infectious disease. Personally, I tend to believe that it is entirely reasonable to require vaccination as a precondition for school or day care and that exemptions should be primarily medical in nature. I grudgingly allow that the freedom of religion guaranteed in the First Amendment probably requires religious exemptions (although I do not understand why religion should be given such a privileged place in society that it can endanger public health), I am far less convinced that philosophical exemptions should be mandated. I realize many may disagree with this position, but I would hope that our disagreements would be based on (1) the best science regarding the benefits and risks of vaccination and (2) honest beliefs regarding the proper balance between public health concerns and individual liberty. Clearly, this is an area of debate. I also tend to believe that if parents refuse to vaccinate their child and that child passes an infectious disease to another child, then those parents should be potentially legally liable. Indeed, Douglas Diekema argues this position very well.
Unfortunately, Dr. Gordon does not meet at least condition #1 above. He does not base his arguments on the best science.