Attention Anti-Vaxers: The Straw Men in Black Are Coming to Get Your Children

Autism blogger extraordinaire Liz Ditz has brought to my attention an article on mothering.com, whose motto is “Inspiring natural families since 1976.” I’m not exactly sure what they mean by “natural families,” but I’ll give them the benefit of the doubt and assume that they don’t mean to exclude adopted children.

The online article

The article in question (hey, I’m a lawyer–I get to write like that) is written by anti-vaxer Barbara Loe Fisher, Grand Poobah of the National Vaccine Information Center (NVIC). As many of you know, NVIC’s sole mission is to convince parents not to vaccinate their children–oh, sorry, I mean that it is to “prevent[] vaccine injuries and deaths through public education and [to] defend[] the informed consent ethic in medicine.”

The article starts with a question from a site visitor asking two questions: whether her state’s child protection authorities “have the power to take my children and force vaccination” and whether a doctor or other medical provider can “force vaccination on my family or report me to child protective services for declining vaccines”:

I stopped vaccinating my son because I believe he had a severe rash due to a vaccine. I have done some further research and I am strongly opposed to any more vaccinations, even for any child I may have in the future. I am concerned for the possibility of child protective services coming to my door and trying to take my son. Do they have the power to take my children and force vaccination? Furthermore, the last pediatrician I went to refused to treat my son because I did not want to continue vaccinating. Can a practitioner force vaccination on my family or report me to child protective services for declining vaccines?

This is something I know a little bit about, for reasons that I won’t describe in order to help me protect my anonymity. I’ll just say that in my years in the workforce I have become familiar with thousands of child-abuse-and-neglect cases.

You can tell that Fisher’s answer is going to be utter nonsense when the second sentence is, “I have always encouraged women to listen to their mother’s instinct and get more information when they sense their children are in danger but are being told to ignore their instincts and obey the doctor’s orders.” Um, Barbie? How can you “listen to your instinct” and “get more information” at the same time? Isn’t an instinct something that is automatic and performed with no conscious planning? If you get information, haven’t you moved beyond instinct?

Anyway, Fisher spends quite a bit of time spouting off on vaccination laws and exemptions that parents may be able to use to avoid vaccination. Her description is actually fairly accurate. But she doesn’t answer the questions that she was asked, at least for quite a while.

When she does get around to answering the questions, her answer seems to be a long “yes”:

Unfortunately, doctors in positions of authority in a state’s health, education or social service system can report parents for failing to vaccinate their children according to state laws and charge parents with child medical neglect. If they persuade a judge to order it, a child can be forced to be vaccinated according to state laws. This does not happen frequently, but it does happen, especially during divorce cases involving child custody battles between parents. It is also more likely to happen when parents take a child to a hospital or clinic for an illness and, when asked if the child is up-to-date on vaccinations, the parents say “no” and then refuse to have the child immediately vaccinated. Some hospitals and clinics have a policy that requires attending personnel to make a report to the state social service agency when parents refuse to vaccinate a child.

There’s a lot going on in this paragraph. Most notably for me, though, is that Fisher conflates action by the government through a child-protective-services agency and action by one parent who is in a dispute with another parent. She seems to be calling the actions of a parent who vaccinates a child “forced vaccination” if the other parent does not want the child vaccinated.

The law

“[D]uring divorce cases involving child custody disputes,” a judge has to decide which parent gets to make decisions about the child. In most cases, the parents are given equal rights to make decisions. Usually, the consent of only one parent is required for a medical procedure. Therefore, one parent can consent to the vaccination of a child over the objection of the other parent. I don’t know for sure, but I think Fisher may be saying that a parent who does not want to vaccinate should be able to prevent the other parent from vaccinating. Or maybe she has heard of cases where a judge has specifically given medical-decision-making rights to a parent who wishes to vaccinate over one who doesn’t. Either way, that’s not even in the same ballpark as the government intervening to force vaccinations on children against the wishes of both or all parents or guardians.

So, you ask, can a government agency vaccinate a child against the wishes of the parents? This is actually two questions: Is there some legal procedure in place that the agency can use to obtain the authority to vaccinate? And, as a substantive-law matter, can the state overcome the significant constitutional rights of parents so as to persuade a judge to require the vaccination?

The answer to the first question is an easy “yes.” As far as I know, all states have procedures by which a doctor or state agency can ask a court to order that a particular medical procedure be performed on a child without the consent of, or against the wishes of, the parents. This is true even if there isn’t enough of a problem with the parents to take custody of the child away from the parents. Although I have heard of this procedure being used to treat children of parents whose religion prohibits a necessary life-saving treatment, I have not heard of any cases, and couldn’t find any cases in the last 50 years, where a court has ordered a child to be vaccinated.

The answer to the second question is far more difficult. Fisher says, “If [doctors or state agencies] persuade a judge to order it, a child can be forced to be vaccinated according to state laws.” Well, sure. But what does it take to “persuade a judge to order it”?

Both state law and the federal constitution will come into play. A few years ago, the U.S. Supreme Court reiterated in Troxel v. Granville that the federal constitution gives parents a fundamental right to the care, custody, and control of their children. Like all constitutional rights, this one isn’t absolute. If a parent poses a substantial risk of “serious harm” to a child, then the state can intervene to protect the child.

Laws differ from state to state in the U.S. (damn you, federal system!), but they are similar enough thanks to the gobs o’ money that the federal government gives states (after first taking it away–sorry, I mean, collecting it in taxes) under the authority of the Child Abuse Prevention and Treatment Act (CAPTA). CAPTA (in section 111(2)) provides us with a basic definition of “abuse or neglect,” which is what a state must be preventing or treating in order to receive federal funds for its efforts, and which therefore forms the basis of most, if not all, state laws establishing child-protective standards:

[T]he term “child abuse and neglect” means, at a minimum, any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm.

Notice that if a child has not been already harmed, the law requires that the actions or inactions of a parent cause “an imminent risk of serious harm.” So does a failure to vaccinate cause “an imminent risk of serious harm”? In most cases, no.

It may be helpful to look at the advice of the federal agency responsible for collecting and reporting the statistics, the Children’s Bureau of the Administration on Children, Youth and Families of the Administration for Children and Families (that’s not a typ0–the two administrations both exist and are named very similarly) of the U.S. Department of Health & Human Services. The Children’s Bureau’s website has a page on the definitions of neglect. On that page is a description of “medical neglect,” which it breaks down into two types:

• Denial of health care—the failure to provide or to allow needed care as recommended by a competent health care professional for a physical injury, illness, medical condition, or impairment. The CAPTA amendments of 1996 and 2003 contained no Federal requirement for a parent to provide any medical treatment for a child if that treatment is against the parent’s religious beliefs. However, CAPTA also designates that there is no requirement that a State either find or be prohibited from finding abuse or neglect in cases where parents or legal guardians act in accordance with their religious beliefs. While CAPTA stipulates that all States must give authority to CPS to pursue any legal actions necessary 1) to ensure medical care or treatment to prevent or to remedy serious harm to a child or 2) to prevent the withholding of medically indicated treatment from a child with a life-threatening condition (except in the cases of withholding treatment from disabled infants), all determinations will be done on a case by case basis within the sole discretion of each State.
• Delay in health care—the failure to seek timely and appropriate medical care for a serious health problem that any reasonable person would have recognized as needing professional medical attention. Examples of a delay in health care include not getting appropriate preventive medical or dental care for a child, not obtaining care for a sick child, or not following medical recommendations. Not seeking adequate mental health care also falls under this category. A lack or delay in health care may occur because the family does not have health insurance. Individuals who are uninsured often have compromised health because they receive less preventive care, are diagnosed at more advanced disease stages, and, once diagnosed, receive less therapeutic care.

Although you could isolate the words “all states must give authority to CPS to pursue any legal actions necessary . . . to . . . prevent . . . serious harm” from that description and argue that a failure to vaccinate is “neglect” because vaccines are necessary to “prevent serious harm,” the gist of this is, to me, that there has to be some existing medical issue or concern that a parent is failing to treat before it is considered “neglect.”

The courts seem to agree. After a bit of research, I have come to the conclusion that courts will find a failure to vaccinate to be “neglect,” and will take action to require vaccination, only when there is a local outbreak of a particular disease that creates a substantial risk of harm to a child. According to an article on the American Medical Association’s website, in 1991 a court in Philadelphia permitted public health authorities to immunize six children for measles against their parents’ wishes because of a local outbreak of more than 500 cases and seven deaths.

I was able to find only one published case in which a U.S. court found that failing to vaccinate a child constituted neglect. In In the Matter of Christine M., a 1992 New York case, two-year-old Christine, a resident of “a busy inner-city neighborhood” of Brooklyn, accidentally ingested some rat poison and ended up in the hospital. While there, hospital staff recommended to Christine’s parents that she be immunized against measles because there was a “serious measles outbreak or epidemic” in New York City. Doctors could not convince Christine’s father to vaccinate her; he objected to vaccines for religious reasons. Interestingly, the mother knew of the value of vaccines, had vaccinated Christine against several diseases without the father’s knowledge, and wanted Christine to be vaccinated against the measles.

The New York Family Court for Kings County concluded that “a parent’s knowing failure to have a child immunized against measles in the midst of a measles epidemic or outbreak clearly places that child’s physical condition in imminent danger of becoming impaired,” which was the standard required under New York law for a child to be considered “a neglected child.” But by the time the court rendered its written decision, two years later, the measles epidemic had subsided, and the court declined to require that Christine be vaccinated.

There are four key points here: One, although Christine was reported to authorities because of her father’s failure to vaccinate her, she came to the attention of medical providers because she had gotten into rat poison. Two, Christine’s mother wanted to vaccinate her, and it’s impossible to know what the court would have done if the parents’ positions had been aligned. Three, the court found “neglect” only because there was, at the time of the initial report to child protective services, an outbreak of measles that placed Christine at higher-than-normal risk for contracting the disease. Four, the court didn’t actually order that Christine be vaccinated.

During the few weeks it has taken me to write this point, an interesting coincidence occurred: an Australian court ordered a 40-hour old baby to be immunized against hepatitis B against the religious objections of the parents. Like the few U.S. cases I was able to find, the court in Australia ordered the vaccination because the child was at a higher-than-usual risk of contracting the disease–its mother had the disease. The court refused ongoing vaccinations, and ordered only the first two “emergency” vaccinations.

In sum, I am comfortable saying that in the U.S., and apparently in Australia, it is extremely rare for a court to order that a child be vaccinated, and it happens only when the child is in some unusual circumstances that create a significantly greater-than-average risk of contracting a disease or suffering some harm.

Clinics’ and hospitals’ policies

As far as policies go, I don’t have access to any hospital’s or physician practice’s policies, so I can’t say whether any of them have policies requiring a report to child protective services merely because a parent refuses to vaccinate a child. But I did find the policy of the American Academy of Pediatrics (AAP), which says, “Continued refusal after adequate discussion should be respected unless the child is put at significant risk of serious harm (as, for example, might be the case during an epidemic). Only then should state agencies be involved to override parental discretion on the basis of medical neglect.” In other words, only if there is a significant risk of serious harm to the child due to the specific circumstances of the child, as in an epidemic, should a physician make a report to child protective services; in most circumstances, according to the AAP, a doctor should not make a child-neglect report merely because a parent refuses to vaccinate. Apparently, “Big Pharma” forgot to make its annual contribution to the AAP. Right, Barbie?

Conclusion

Anti-vaxers, pay attention: Unfortunately for your children and for society, you have little to fear from authorities. Your doctors won’t be reporting you for failing to vaccinate, and government agents in dark suits won’t be breaking down your door and dragging your kids off to be vaccinated. You should be much more afraid of the preventible diseases that your child might get than of any action society may take to protect your children from those diseases and from you.