Vaccine Court

The Law and Politics of Injury

Anna Kirkland

• Publisher: NYU Press
• Year: 2016
• ISBN:
  9781479847136
• Topic: Derecho
• Subtopic: Tribunales

The so-called vaccine court is a small special court in the United States Court of Federal Claims that handles controversial claims that a vaccine has harmed someone. While vaccines in general are extremely safe and effective, some people still suffer severe vaccine reactions and bring their claims to vaccine court. In this court, lawyers, activists, judges, doctors, and scientists come together, sometimes arguing bitterly, trying to figure out whether a vaccine really caused a person’s medical problem. In Vaccine Court, Anna Kirkland draws on the trials of the vaccine court to explore how legal institutions resolve complex scientific questions. What are vaccine injuries, and how do we come to recognize them? What does it mean to transform these questions into a legal problem and funnel them through a special national vaccine court, as we do in the U.S.? What does justice require for vaccine injury claims, and how can we deliver it? These are highly contested questions, and the terms in which they have been debated over the last forty years are highly revealing of deeper fissures in our society over motherhood, community, health, harm, and trust in authority. While many scholars argue that it’s foolish to let judges and lawyers decide medical claims about vaccines, Kirkland argues that our political and legal response to vaccine injury claims shows how well legal institutions can handle specialized scientific matters. Vaccine Court is an accessible and thorough account of what the vaccine court is, why we have it, and what it does.

Contents

Acknowledgments

Introduction: Our Immunization Social Order

1. How Are Vaccines Political?

2. The Solution of the Vaccine Court

3. Health and Rights in the Vaccine-Critical Movement

4. Knowing Vaccine Injury through Law

5. What Counts as Evidence?

6. The Autism Showdown

Conclusion: The Epistemic Politics of the Vaccine Court

Notes

Index

About the Author

Acknowledgments

The chance to research interesting questions and then to write about them as part of an intellectual community is the great privilege of being a college professor. I realized when I could not stop reading and following the rulings of the vaccine court that it would just have to be the subject of my next book. This book would not have been possible without people being willing to talk to me about the vaccine court and their experiences within it, and I am deeply indebted to all of them. I did much of the research for this project as a fellow at the Law and Public Affairs Program at Princeton University in 2010–2011, where I enjoyed proximity to Washington, D.C., as well as the generous resources and stimulating conversations with my colleagues there, especially Kim Lane Scheppele, Paul Frymer, Leslie Gerwin, Elizabeth Mertz, Tanya Hernandez, Amy Lerman, Gordon Silverstein, Hendrik Hartog, Steven Wilf, and Keith Wailoo. The scholarly environment at the University of Michigan has nurtured me for my entire career. I am blessed with generous colleagues in the Science, Technology, and Society (STS) program who read and commented on sections of the book, especially Shobita Parthasarathy, Joel Howell, Gabrielle Hecht, Paul Edwards, Alexandra Stern, John Carson, Marty Pernick, Elizabeth Roberts, Joy Rohde, and Perrin Selcer. Sarah Fenstermaker and my colleagues at the Institute for Research on Women and Gender were especially caring in the final weeks of manuscript preparation. I also wish to thank Elizabeth Anderson, Roger Bernier, Carol Boyd, Art Caplan, Elizabeth Cole, Kevin Conway, Charles Epp, Geoffrey Evans, Eric Feldman, Patricia Segal Freeman, Sander Greenland, Colleen Grogan, Peter Jacobsen, Carla Keirns, Anders Kelto, Sandra Levitsky, Aaron Ley, Michael Lynch, Jonathan Metzl, Clark Miller, Jennifer Mnookin, Brendan Nyhan, Paul Offit, Lisa Prosser, Jennifer Reich, Dorit Reiss, Dorothy Roberts, Abigail Saguy, Dan Salmon, Jason Schwartz, Jeffrey Segal, Chloe Silverman, Sergio Sismundo, Emily Stopa, Beth Tarini, Curtis Webb, Elizabeth Wingrove, and insightful anonymous reviewers for their help in thinking through the ideas in this book and for presenting me with new ones. Tom Burke has always been encouraging when it seemed like we were the only two people in all of political science who were interested in the vaccine court.

I presented papers that would become parts of this book and benefited from energetic audience participation at Northwestern University’s Science in Human Culture Klopsteg lecture series, the American Bar Foundation, Vanderbilt University’s Center for Medicine, Health, and Society, the University of Pennsylvania Health Law Students Association, the UCLA School of Law faculty lecture series, the University of Michigan Center for Ethics in Public Life, and the Child Health and Evaluation Research Unit at the University of Michigan School of Medicine. Anna Frick, Denise Lillvis, Lotus Seeley, and Courtney Shier (from Michigan’s Undergraduate Research Opportunity Program) provided timely and helpful research assistance; Kathy Wood transcribed my interviews. I received research funding support from Princeton University, from the College of Literature, Science, and the Arts at the University of Michigan (Faculty Research Grant and Associate Professor’s Fund), from the Women’s Studies Department at Michigan, and from the Institute for Research on Women and Gender at Michigan (IRB #HUM00031641). I received no funding from any private corporation or from any government grant, and I have no conflicts of interest. My discussions of vaccine policy trends in the states are based on research first done with Denise Lillvis and adapted here from our article “Power and Persuasion in the Vaccine Debates: An Analysis of Political Efforts and Outcomes in the States, 1998–2012,” with Denise Lillvis (first author) and Anna Frick, Milbank Quarterly 92, no. 3 (September 2014): 475–508. A version of Chapter 6 was published as “Credibility Battles in the Autism Litigation,” Social Studies of Science 42, no. 2 (April 2012): 237–61. Chapter 3 on vaccine critics shares some material from “The Legitimacy of Vaccine Critics: What’s Left after Autism?,” Journal of Health Policy, Politics and Law 37, no. 1 (February 2012): 69–97, copyrighted at Duke University Press, and I first worked on the political account of vaccines that now constitutes Chapter 1 while composing my entry on childhood vaccines for Brent Steel’s Science and Politics: An A to Z Guide to Issues and Controversies (CQ Press/Sage, 2014). I thank all these publishers for permission to reuse these prior publications.

My family and friends have been a steadfast source of joy and support. I am very grateful to my network of caregivers whose labor created the time for me to write this book, especially Hannah Jones, Noreen Smith, Sarah Wizinsky, and the staff and teachers at the Ann Arbor Jewish Community Center.

Introduction

Our Immunization Social Order

Vaccine Injury and the Immunization Social Order

When parents hesitate or refuse to vaccinate their children, it is often because they have doubts about vaccine safety.1 They fear vaccine injuries. They have heard that vaccines can cause autism, allergies, immune problems, or attention-deficit disorder, for example. Vaccine injuries do happen, though the scientific consensus is that none of these conditions are among them. More obscure conditions, such as thrombocytopenic purpura, a very rare and transient condition characterized by low platelets and excessive bleeding and bruising, are agreed-upon adverse events after vaccination (in this case, the measles-mumps-rubella or MMR vaccine). The tetanus vaccine can cause brachial neuritis, an inflammation of the nerves in the hand, arm, and shoulder; the rubella vaccine can cause arthritis, particularly in women; and the measles vaccine can cause encephalitis, a potentially very serious irritation and swelling of the brain. I always watch my children carefully in the few minutes after they receive a vaccine because anaphylaxis and fainting are also rare but possible reactions to injections. We have very personal, embodied experiences within the broader political and legal context of vaccination policy in the contemporary United States.2

Vaccine injuries are a complex and fascinating problem. They expose tensions between parents and professional experts, between certainty and doubt, and between different ways of knowing and being sure. Vaccine injuries display the inevitability of the meeting between science, politics, and the law, giving us a case to explore how well our democracy manages this tense and productive collaboration. Experts and activists have widely divergent ideas about what vaccine injuries are and how to recognize them, and recent decades have seen a strong social movement mobilized around injury claims. American vaccines are embedded within a robust private pharmaceutical economy, state-level vaccination requirements to enroll in school, a federal regulatory and safety monitoring regime, and an extensive health and medical research system. When vaccines cause injury, U.S. citizens can petition for legal compensation at a special court known simply as the vaccine court. A successful legal claim validates the harm, gives the injured person a sense of being heard, affirms governmental responsibility, and provides a proper ethical and financial response from the community.3

Throughout this book, I explore all the ways that we come to recognize a vaccine injury in the contemporary United States, asking who knows, how they know, how they prove it, who has the power to recognize it and how, and what they do about it. I place our vaccine court at the center of my analysis as the site where parents, activists, researchers, doctors, lawyers, and health bureaucrats come together to wrangle over what vaccine injuries really are. Our vaccine court is a useful institution for handling the recognition of vaccine injuries given that we regard them as posing simultaneously scientific, political, ethical, and legal problems. The vaccine court offers a desirable balance between openness to challenge and the stability of vetted expertise; it encourages peaceful social movement activism that must be presented as knowledge-driven, questioning, and public-spirited; and its design has allowed the vaccine court judges (called special masters) to give as much recognition as possible to people bringing claims while maintaining sufficient scientific credibility. The operation of our vaccine court since its first hearings in 1988 shows how rights claims and social movement activism are thoroughly intertwined with knowledge claims. Courts have always dealt in knowledge claims, of course, but the case of vaccine injuries shows exactly how legal actors work at the center of multiple knowledge sites to uphold and help constitute what I call the immunization social order in the contemporary United States.

Our immunization social order is the set of institutions, laws, pharmaceutical biotechnologies, and social practices that work together to produce high levels of vaccine coverage to prevent a wide range of diseases. It is both the freedom from vaccine-preventable diseases that we enjoy as well as the investments and social control necessary to maintain it. The Centers for Disease Control and Prevention (CDC) estimates that vaccination will prevent 322 million illnesses, 21 million hospitalizations, and 732,000 deaths during the lifetimes of the children born in the United States between 1994 and 2013.4 During the time period 1994 to 2013, the U.S. government funded a consolidated effort to vaccinate uninsured and underinsured children. The CDC estimated that these immunizations saved $295 billion in direct costs and $1.38 trillion in total societal costs.5 A starting assumption for this book is that this widespread freedom from illness, worry, and death is a prec...