New York University Public Law and Legal Theory Working Papers

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The laws that govern childhood compulsory vaccination deprive parents and children of three ordinary tort law protections: free and informed consent to an invasive medical procedure; accurate and complete information about vaccine ingredients and possible side effects; and the right to sue manufacturers and medical practitioners directly in the event of injury. While these atypical tort law standards have been adopted and upheld for the public good, this article argues that they have caused unintended and undesirable consequences. These effects include unnecessary compulsory childhood vaccinations; conflicts of interest in national vaccine policy; inadequate vaccine safety; inadequate warnings about vaccine risks; insufficient compensation for vaccine-induced injury; and other undesirable outcomes. The article offers a new interpretation of the landmark Supreme Court case, Jacobson v. Massachusetts, that recognizes constitutional limitations on compulsory vaccination, and sheds light on the key federal statute, the National Childhood Vaccine Injury Compensation Act.

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