We invite you to read Oregon Law Review: Herd Immunity and Compulsory Childhood Vaccination: Does the Theory Justify the Law? By MARY HOLLAND AND CHASE E. ZACHARY

ABSTRACT: Compulsory childhood vaccination is a cornerstone of U.S. public health policy. All fifty states compel children to vaccinate against
many infectious diseases to achieve so-called herd immunity, a scientific theory that attempts to explain how societies protect themselves against infectious disease. This Article explores both the theory and practice of herd immunity. The authors evaluate the scientific assumptions underlying the theory, how the theory applies in law, a game theory approach to herd immunity, and a possible framework for rational policymaking.

The Article argues that herd immunity is unattainable for most diseases and is therefore an irrational goal. Instead, the authors conclude that herd effect is attainable and that a voluntary vaccination marketplace, not command-and-control compulsion, would most
efficiently achieve that goal.

Our colleague Mary Holland wrote this post (below) for the Harvard Bill of Health Blog in June of 2013.

The Article takes on the bugaboo of the citizen “free rider” who is out to game the system, how a vaccination marketplace might work, and what factors policymakers must take into account in developing sound policies. The Article concludes that it is time for states to adopt more realistic and cost-efficient laws to achieve attainable herd effect, not illusory herd immunity.

Unlike measles, there is no lifelong immunity to calls for "crackdowns" like this one in the LA Times Economy Hub:

The Disneyland measles crisis: how to make negligent parents pay

Guest Post: Crack Down on Those Who Don’t Vaccinate?: A Response to Art Caplan

Dr. Art Caplan recently posted an editorial, “Liability for Failure to Vaccinate,” on this blog. He argues that those who contract infectious disease should be able to recover damages from unvaccinated people who spread it. If you miss work, or your baby has to go to the hospital because of infectious disease, the unvaccinated person who allegedly caused the harm should pay. Dr. Caplan suggests that such liability is apt because vaccines are safe and effective. He sees no difference between this situation and slip-and-fall or car accidents due to negligence. Arguing that “a tiny minority continue to put the rest of us at risk,” he suggests that public health officials can catch the perpetrators and hold them to account through precise disease tracing.

Dr. Caplan’s assertions to the contrary, vaccines are neither completely safe nor completely effective. In fact, from a legal standpoint, vaccines, like all prescription drugs, are “unavoidably unsafe.”  [See, e.g., Bruesewitz v. Wyeth, 562 U.S. __ (2011).‎] Industry considered its liability for vaccine injury so significant that it lobbied Congress for the 1986 National Childhood Vaccine Injury Act, providing doctors and vaccine manufacturers almost blanket liability protection for injuries caused by federally recommended vaccines. [See Authorizing Legislation.] The liability risk was so serious that the federal government created a special tribunal under the 1986 Act, the Vaccine Injury Compensation Program, to pay the injured. Moreover, the Supreme Court in 2011 decided Bruesewitz v. Wyeth, prohibiting any individual from filing a civil suit for a defectively designed vaccine in any court in the country. Industry’s extraordinary protection against liability for vaccine injury does not correspond with glib statements, like those of Dr. Caplan, that vaccines are safe and effective. On the contrary, the law acknowledges that vaccines cause injury and death to some, with no screening in place to mitigate harm. Dr. Caplan notes that public health officials have “tried to debunk false fears about vaccine safety.” Yet the Institute of Medicine, one the country’s most prestigious health organizations, has acknowledged repeatedly that there are many known vaccine injuries, such as seizures from the measles-mumps-rubella vaccine, anaphylaxis from the meningococcal vaccine, and encephalitis from the varicella vaccine. Even more troubling than the identified injuries is the number of potential vaccine adverse effect relationships for which the evidence is not sufficient to either prove or disprove causality. [Committee to Review Adverse Effects of Vaccines, Institute of Medicine, Adverse Effects of Vaccines: Evidence and Causality (Kathleen Straton et al. eds., 2012).]