David J. Carney, Anapol Weiss

Vaccines are an integral part of the American society and have been instrumental in eliminating dangerous diseases that once crippled millions of people, curtailing the spread of contagious diseases that are recurrent in the population, and keeping health care costs down. Since vaccinations are manufactured to combat preventable diseases and illnesses, they undergo long and careful review by scientists, doctors and the federal government to ensure their safety. Vaccines have almost completely eradicated diphtheria, tetanus, pertussis (whooping cough), polio, measles, mumps, and rubella from our society.

Vaccines have become mandatory in schools due to the concentration of students and the potential for diseases to spread rapidly. Children in Pennsylvania are required to have four doses of TDaP, four doses of polio, two doses of MMR, three doses of Hepatitis B and two doses of varicella in order to attend Pennsylvania public schools. By seventh grade, children are required to have another TDaP vaccine and a meningococcal conjugate vaccine. Unless a religious or medical exemption is asserted, a child can be excluded from public school for failing to comply with the vaccination regulations.

Vaccine exemptions, exercised by adults or parents on behalf of their children, have created a public health issue despite their legality under state law. For instance, in Pennsylvania, 28 Pa. Code 23.84 sets forth two provisions for vaccine exemptions:

  • Medical exemption. Children need not be immunized if a physician or the physician’s designee provides a written statement that immunization may be detrimental to the health of the child. When the physician determines that immunization is no longer detrimental to the health of the child, the child shall be immunized according to this subchapter.
  • Religious exemption. Children need not be immunized if the parent, guardian or emancipated child objects in writing to the immunization on religious grounds or on the basis of a strong moral or ethical conviction similar to a religious belief. Medical exemptions are predicated on a physician’s opinions that certain vaccines must not be administered due to a child’s current or past health condition. For instance, a child with a prior history of Guillain-Barre Syndrome (GBS) would not be administered the influenza vaccine since it is well established that the influenza vaccine causes GBS.

In 28 Pa. Code 23.84(b), “the basis of a strong moral or ethical conviction similar to a religious belief” is also known as the “philosophical exemption.” The religious and philosophical exemptions are becoming increasingly common throughout Pennsylvania and across the United States. In 2017-2018, 3,335 children asserted religious exemptions and 4,326 asserted philosophical exemptions. All that is required to assert one of these exemptions is a signed letter from the parent or guardian of a child which alleges the provisions of 28 Pa. Code Section 23.84. Since no further explanation is required, the bar has been set very low to assert these exemptions, thereby jeopardizing others’ health and allowing preventable diseases to spread throughout schools and communities.

The most recent example occurred when 36 students from the Asheville Waldorf School in North Carolina were diagnosed with chickenpox during one of the worst outbreaks the country has seen. As a result of the outbreak, students who came into contact with the afflicted children were quarantined at home for 21 days. The Asheville Citizens Times reported that North Carolina’s Department of Health and Human Services tracks the rate of kindergartners whose parents have claimed a religious exemption to avoid certain vaccinations. During the 2017-2018 school year, Asheville Waldorf had a third-highest rate of religious exemptions for vaccinations in the state. Of the 28 kindergartners who enrolled that year, 19 had an exemption to at least one vaccination that was required by the state for school entry. This area of Asheville is a known hotspot for the anti-vaccination movement.

In Pennsylvania, there has been a decrease in vaccination rates as parents are choosing to not vaccinate their children against preventable diseases and illnesses. As a result, the state legislature has stepped in with proposed legislation to combat the growing issue. Specifically, state Sen. Daylin Leach (D-Montgomery/Delaware) introduced Senate Bill 217 in January 2017 in response to Pennsylvania’s low vaccination rates in schools that he believes are partially due to the philosophical exemption enumerated in 28 Pa. Code Section 23.84. Leach’s legislation is designed to increase the number of Pennsylvania school children who are immunized against preventable diseases by removing the philosophical exemption. His legislation, which is awaiting a vote in the Senate Education Committee, would not impact the religious or medical exemptions that currently exist under the law.

Interestingly enough, clusters of vaccine refusers do not belong to a single political affiliation. For instance, The Washington Post examined this issue recently and discovered excessively high vaccine-refusal rates in Vashon Island, Washington, “home to many affluent ‘ex-hippies,’” and in rural Ferry County in Washington state, which voted for Donald Trump by a margin of approximately 30 percentage points.

The exact reasoning for vaccine refusals is unknown, but it is thought to be related to a community’s shared values, demographics and socioeconomic status. One thing is for certain, education on the issue is critical. High vaccination rates in communities protect individuals from preventable diseases and protect the community at large from outbreaks. If the vaccination rate is high enough, herd immunity is created which virtually eliminates any risk of an outbreak. Herd immunity is also critical in protecting individuals and children that cannot be vaccinated for medical reasons (history of prior autoimmune diseases, immunodeficiencies or those on cancer chemotherapies). Clusters of vaccine refusers breach the herd immunity barrier and put those who cannot be immunized at serious risk of harm.

Parents may be concerned about their children suffering adverse reactions after the administration of various vaccinations. The most common debate is whether the MMR vaccine can cause autism. This debate started in the late 1990s and was heavily litigated in the National Vaccine Injury Compensation Program (NVICP) before it was appealed to the U.S. Court of Federal Claims and then to the U.S. Court of Appeals for the Federal Circuit. Except for a few rare exceptions, the courts found that the science did not support a causal link between the MMR vaccine, or any vaccine, and the development of autism spectrum disorder.

The National Vaccine Injury Compensation Program (NVICP) routinely compensates individuals and children for various injuries that have been shown to be caused by various vaccines. For instance, the most common injuries from vaccines include shoulder injuries from improper vaccination (also known as SIRVA—shoulder injury related to vaccine administration), Guillain-Barré Syndrome, transverse myelitis (TM), acute disseminated encephalomyelitis (ADEM), lupus, chronic inflammatory demyelinating polyneuropathy (CIDP), brachial neuritis shoulder injuries, myositis, Bell’s palsy and optic neuritis. While these injuries and conditions are linked to various vaccines, their occurrences are extremely rare in the country and should not deter one from obtaining their physician-recommended vaccines, unless a medical exemption applies. The risks of being afflicted by one of these conditions are far outweighed by the benefits provided by vaccinations. Some parents or guardians assume that refusing vaccines will somehow prevent their children or loved ones from contracting one of these conditions. However, the influenza virus, diphtheria, tetanus, pertussis (whooping cough), polio, measles, mumps and rubella all can trigger an immune response that results in one of the above diseases or conditions just as easily as a vaccine can. Regardless, parents are refusing vaccines on behalf of their children.

Even adults are refusing physician-recommended vaccinations at increasing rates. For instance, according to a nationally representative survey of 1,200 people conducted by NORC at the University of Chicago, an independent research institution, approximately 41 percent of the people indicated that they planned to forgo the influenza vaccine in 2018. This is in comparison to the 2017-2018 season when approximately half of the American population received their influenza vaccines. The main argument for declining the flu shot is the belief that it is only 36 percent effective. In the wake of increased vaccine-refusal rates, public health departments, physicians, health care employees, parents and educators need to be fully educated and informed on the benefits of vaccines and their vital role in our society, as well as the extremely small risk that an adverse outcome may occur.

Health care providers should be proactive in educating the community and parents of both the immense benefits of vaccinations and the potential risks. While health care providers often focus on the importance of high vaccination rates and herd immunity, such education should not disregard or ignore science by which vaccines can, and do, cause certain rare autoimmune conditions. Ignoring the discussion on potential adverse risks will only cause parents to distrust the health care industry. Gaining this important education will help individuals understand why extremely rare adverse outcomes occur as a result of vaccines, and the legal remedies available to injured victims. For those of us without a legitimate medical exemption, vaccinating against preventable diseases will almost always outweigh the extremely small risk of suffering an adverse event from a vaccine.

David J. Carney is an attorney at Anapol Weiss and is currently the vice president of the Vaccine Injured Petitioners Bar Association. He represents individuals who have suffered adverse events from vaccines, as well as those who have catastrophic personal injuries from hazardous chemical, toxic and environmental exposures, benzene exposures, medical malpractice and defective products. Contact him at 215-735-3770 or via email at dcarney@anapolweiss.com.