Sex, Science, and the Age of Anxiety

This article examines the question of whether the HPV vaccine should be mandated (for girls and/or boys) in the context of declining rates of childhood immunization, and the potential threat to public health that this decline poses. The article addresses two interconnected legal issues: first, is mandating vaccines to prevent the spread of disease constitutional under substantive due process and equal protection principles, and second, should parents be permitted to “opt out” of mandatory vaccination on their children’s behalf, either for all vaccines or those which prevent particular diseases. The article addresses these issues in the context of America’s growing concern about the risks to children’s health and considers how our society’s scientific literacy (or lack thereof) affects the response to risk. The next section (Part I. B.) briefly sketches current vaccine controversies, focusing on special concerns raised about the HPV vaccination. Part II examines current law and science governing vaccination, connecting constitutional, regulatory, and tort law doctrines. This Part first considers the legal and scientific justifications for government vaccination mandates. It then addresses the role of informed consent in vaccination, focusing on the recent upsurge in parental efforts to opt out of vaccination for their children and examining the consequences of state laws which broaden the criteria for religious or “philosophical” exemption. Next the article reviews current federal oversight of vaccine safety and considers whether it is sufficient to protect children and adults from vaccination-related harms. Here the article offers informed speculation about the impact of the Supreme Court’s decision in Bruesewitz. In Part III the article addresses concerns about the HPV vaccination. First, it explores medical and epidemiological data to address the question of whether mandatory (as distinguished from recommended) vaccination is necessary to reduce the incidence of HPV-related death, sterility, and illness. Second, it addresses legal and constitutional concerns raised by HPV’s transmissibility through sexual contact. Although the HPV vaccine was originally approved and recommended only for girls, because of the strong connection between HPV infection and cervical cancer, the vaccine is now approved and recommended for boys as well. The latter recommendation and approval reflects the vaccine’s efficacy in reducing the transmission of HPV between males and females and also in reducing the rising male-to-male transmission rate, which together have led to an increased incidence of HPV-caused cancers in males. The article will consider both the substantive due process concerns applicable to all mandatory vaccination programs, particularly those targeted at children, and the equal protection concerns that could be raised by a vaccine mandate that targets only one gender. Part IV concludes, recommending that all jurisdictions enact laws mandating vaccination of middle school students of both genders against HPV, subject to the same opportunity for parents to opt out that apply to other vaccine-preventable diseases