News & Insights

Regulatory Response to Vaccine Refusal

July 27, 2017

Karen Duncan, R.N., Attorney at Law, Counsel to Medical Interactive Community


Regulatory Response to Vaccine Refusal

Just over 100 years ago, an entire Utah family of eight children died of diphtheria in only a 17-day period. Today, some wealthy Los Angeles elementary schools have the same dismal vaccination rate as South Sudan and Chad.  

In the period between the Utah family and the California school children, most vaccines were developed---- acclaimed by some as humanity's greatest single public health achievement. In spite of undeniable clinical evidence, 90% of modern pediatricians encounter parents who hesitate to vaccinate their children.

States in the U.S. have a constitutional interest in public health and safety and regulate vaccination. Lawmakers have responded to vaccine refusal in various – and in some cases, contradictory – ways. On the one hand, all 50 states mandate vaccines for nursery school or public school attendance. On the other, at least 20 states allow parents to refuse vaccines for personal, religious, or philosophical reasons.

The Texas legislative history of mandating HPV (Human Papillomavirus) vaccine under the brand names Gardasil and Cervaris for sexually transmitted diseases illustrates the divergent tensions of the state regulatory response to mandated vaccines.

HPV is now present in 75% of all of all women and 25% of all men. The virus is associated with cancer in both sexes. The CDC and the American Academy of Pediatrics recommend the HPV vaccine to all female and male adolescents at 11 or 12 years old.

Texas was the first state to mandate HPV vaccines, accomplished by executive order of then-governor Rick Perry. The Texas legislature (after much public debate) overrode the executive order. Since then, only four states have even considered mandatory HPV vaccines because legislators fear the political backlash that Governor Perry experienced.

Vaccine refusal is most commonly debated by the most highly educated parents – those who are in other respects often the most diligent about their children’s health. Those parents typically emphasize that they have the choice and the right to refuse consent on behalf of their minor children. The American Academy of Pediatrics has recently taken the position that vaccine refusal is an acceptable reason to dismiss a patient. For guidance in patient dismissal, access LAMMICO’s video “Dismissing a Patient.”

Push Back. Allowing Minors to Consent.

State legislative alternatives have been proposed to increase the vaccine rates in vulnerable populations.

As a general matter, parents have the right to consent on behalf of their minor children. Most states have a legal mechanism that allows mature minors to consent to certain procedures and treatments without parental involvement. However, state law frequently limits the minor’s ability to consent only to diagnosis and treatment.

That leaves out vaccines, which are neither.

Louisiana Law Relative to Consent by a Minor

La. R.S. 40:1079.1
A. (1) Consent to the provision of medical or surgical care or services by a hospital or public clinic, or to the performance of medical or surgical care or services by a physician, licensed to practice medicine in this state, when executed by a minor who is or believes himself to be afflicted with an illness or disease*, shall be valid and binding as if the minor had achieved his majority. Any such consent shall not be subject to a later disaffirmance by reason of his minority. **
    (2) A minor may consent to medical care or the administration of medication by a hospital licensed to provide hospital services or by a physician licensed to practice medicine in this state for the purpose of alleviating or reducing pain, discomfort, or distress of and during labor and childbirth.
* Louisiana minors may consent only when they believe that they are afflicted by disease. On its face, this may limit the ability of a minor to consent for a preventative vaccine.
** There are exceptions to this general rule in La. law, including for abortions. Also, consult HIPAA regulations regarding the release of records to a minor.

Also, see La. R.S. 1121.8, Minors' Consent for Treatment of Venereal Diseases. Consent for treatment may be executed by a minor who is or believes himself to be afflicted with a venereal disease.

California has recently lowered the age of consent for sexually transmitted infections in an attempt to counter parental refusal of HPV refusal. Now, a California minor who is 12 years old or older may consent to medical care related to the prevention of a sexually transmitted disease. Giving minors the ability to consent to a vaccination is intended to increase California vaccination rates.

Missouri also amended its consent law to explicitly allow minors to consent to the HPV vaccine, but without the mass media publicity Texas endured as the result of their overturned executive order. Missouri specifically allows minors to consent to immunizations for venereal disease.

For more information on legislative response to vaccine opposition, see The Journal of Law, Medicine & Ethics, Vol 44:3 Fall 2016 “Lowering the Age of Consent: Pushing back against the Anti-Vaccine Movement” Allison M. Whelan.

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