Brooklyn Law Review


Eugene McCarthy


This article argues that U.S. vaccine law produces the “anti-vax” movement. The anti-vax movement is a growing problem, as more than half of American parents have concerns about vaccinating their children. Remarkably, these “vaccine-hesitant” individuals tend to be highly educated, wealthy, and experienced parents. Three legal structures cause vaccine hesitancy: strict immunization mandates, lax regulatory oversight, and blanket limited liability for vaccine manufacturers. The United States stands alone with regard to its vaccine mandates—no other developed democracy requires its citizens to receive such a large number of childhood vaccines. Meanwhile, the law permits financial conflicts of interest in vaccine approval protocols, while barring claimants from bringing vaccine-injury lawsuits against drug companies. These legal structures lay the foundation for conspiracy theories that the government unduly favors pharmaceutical industry interests over individual civil liberties and public health (e.g., corporate profits drive excessive vaccine mandates, vaccines cause autism, and the flu shot is a scam). These pervasive conspiracy theories undermine public trust in vaccines and facilitate dangerous epidemics, as recent measles outbreaks demonstrate. Indeed, the risks of vaccine hesitancy are now more pronounced than ever before, as distrust in COVID-19 vaccines threatens public health. If the government amends or eliminates one or more of these legal structures, it can alter perceptions about vaccines, minimize parental concerns, and generally mitigate the dangers of vaccine hesitancy.