Twenty States Consider Mandating the Cervical Cancer Vaccine: The Controversy

By SHERRY F. COLB

Wednesday, Apr. 04, 2007

Twenty states are currently considering legislation that would require preteen girls to receive vaccinations against various strains of sexually-transmitted Human Papillomavirus (HPV), a virus that can cause cervical cancer. The vaccine is called "Gardasil," and Merck & Co. is the only pharmaceutical company that manufactures the vaccine at this time. Most of the laws in question would prevent girls who lacked proof of vaccination from entering school. Merck has lobbied aggressively in favor of the legislation.

The proposed bills have garnered opposition, primarily from two quarters: One group of detractors believes that the provision of vaccinations against a sexually-transmitted disease condones premarital sexual activity. Another group worries that the vaccination might turn out to have unanticipated harmful effects and should accordingly remain optional until it is clearer that its long-term health benefits outweigh any dangers.

Vaccine Condones Premarital Sex?

Conservative Christian groups and some parents have opposed the vaccine on religious grounds. They argue that providing school children with a vaccination against sexually-transmitted disease implicitly approves of premarital sex and thus undermines the abstinence message that religious groups hope to send to young people.

This argument has two main weaknesses. The first is that the vaccine provides protection for people exposed to HPV regardless of their marital status at the time of exposure. Even a girl who has successfully embraced premarital chastity could later marry a man who is unchaste. If the man is no longer a virgin when he weds, then he could carry sexually-transmitted HPV and thereby expose his wife to the same. If she has previously been vaccinated, however, then she is less likely to contract cervical cancer from the exposure than she otherwise would have been. Accordingly, even religiously virtuous women could benefit from vaccination.

A second and more fundamental flaw in the religious argument against HPV vaccination is that the argument ignores the distinction between the world as some would like it to be, and the world as it actually is. Ideally, according to many religious people, only married couples would have sexual relations, and everyone else would remain celibate. Single people would all be virgins, and married people would all be faithful. If this vision of the ideal world were to become a reality, then the sexually-transmitted Human Papillomavirus would no longer threaten women with cervical cancer. Vaccination would be unnecessary.

In the real world, though, notwithstanding abstinence-only educational initiatives, many young (and older) people continue to have sex with other people to whom they are not wed. HPV thus continues to spread and sometimes to result in cervical cancer, a life-threatening illness. Though HPV vaccination would concededly be unnecessary in the "ideal" world of universal premarital abstinence and post-marital fidelity, it might nonetheless save lives in the real world that our species inhabits.

Accordingly, the message - if there is a "message" in the inoculation of girls against cervical cancer - is simply that even if they deviate from the path of moral purity, we adults still do not want them to contract cervical cancer when they grow up. Because so many people are "impure," moreover, we inoculate girls ahead of time. We can teach our children to wait until they are married and simultaneously protect them from becoming sick in the event that they do not listen to us.

As in so many things, children (and adults) can reject their parents' messages, however moral and wise. It is a parent's job to plan in advance for the possibility of such disobedience and to attempt to reduce the odds that it will lead to illness and death.

Because the religious argument - that vaccinating against HPV communicates approval for premarital sex - is so unpersuasive, one might be forgiven for wondering whether those who oppose vaccination on these grounds actually welcome the prospect of unchaste women contracting cervical cancer. That is, rather than expressing a sincere worry about condoning sexual activity, some opponents of Gardasil might find it objectionable because it prevents people from suffering their rightful punishment for immoral sexual activity. There were those among the religious right, for example, who made a related claim about AIDS - that it represents divine punishment for homosexual activity. If this is in fact what motivates religious opposition, it is a sad commentary on "family values."

Unknown Risks for Limited Payoff

Far more compelling than the "condoning sex" argument is the worry expressed by numerous parents that Gardasil might not be safe in the long term. Limited studies of a drug, prior to its release, cannot guarantee its safety over time. It might therefore be prudent to hold off on mandating the drug unless and until the evidence of its safety and benefits becomes clear and decisive.

In the case of Gardasil, we have a vaccination that provides some protection against a form of cancer that afflicts a relatively small percentage of women in the developed world. By comparison to breast cancer, for example, cervical cancer presents a threat of a much lower magnitude. Some parents could reasonably conclude that the unknown long-term risks of Gardasil to their daughters might outweigh the known benefits in cervical cancer prevention, given the relatively low baseline risk.

If it is reasonable for a parent to draw such a conclusion, then it may be inappropriate for the law to mandate vaccination. After a number of years (in which many people will voluntarily take Gardasil), more information will become available and enable a reconsideration of the wisdom of legislative mandates.

Should Vaccinations Be Left Up to Individuals?

The notion of mandatory vaccination might sound strange to many readers. As patients (and parents of patients), each of us ordinarily has the right to decide whether we will take a particular medication to treat an illness that we already have. If you have bronchitis, for example, your doctor might recommend that you take penicillin, but you have the right to refuse that recommendation and take a homeopathic remedy (or nothing at all) instead.

The U.S. Supreme Court recognized, in Cruzan v. Director, Missouri Dept. of Health, that individuals have a constitutional right to refuse consent to treatment, even life-saving treatment. Does that not preclude a regime of legally mandatory vaccination?

It does not. A vaccine can have a legal status that is distinct from that of treatment drugs. Some vaccines are subject to legal mandates, because they are intended not only to protect the individual from becoming sick (or to heal a sick individual) but also to protect the population as a whole from contracting the infection. Large-scale vaccination (of the sort that results when vaccination is legally required) produces what is called "herd immunity." It is through such vaccination that illnesses like smallpox can be eliminated from our midst. At this time, vaccinations for measles and chicken pox are mandatory for U.S. schoolchildren - and the requirement does not violate the Constitution.

When considering whether to mandate a vaccine, of course, cost/benefit analysis remains appropriate, and even vaccines should remain voluntary if the benefits to the population do not obviously and decisively outweigh the costs. Even if it is probably beneficial, moreover, Gardasil might nonetheless be an inappropriate candidate for mandatory inoculation as a condition for school attendance. Gardasil differs from many other currently mandatory vaccines in an important respect. It protects against a disease that is not transmitted by casual contact.

Take, as a point of comparison, the case of measles. When a child who carries the measles virus goes to school, she can infect many other children simply by playing and interacting with them in the ways that children typically interact during school hours. Therefore, even if the child's parents are not sufficiently worried about measles to vaccinate their daughter, the other children in school have an important stake in avoiding infection and therefore in each of their playmates' avoiding infection as well.

In the case of a sexually-transmitted disease, by contrast, children in school do not have to worry about contracting the illness through the ordinary activities that take place in the classroom. Even if some people in the building carry HPV, they do not pose the same casual-contact threat to every other person in the building that a person carrying an airborne illness like measles does.

A student carrying HPV might, of course, have sex with another student, despite the efforts of adults in charge. Exposure through sexual contact, however, is no more likely to take place on school property than at any other location. Indeed, the crowding that happens at school - which makes highly contagious illness a serious threat to the school community's health, even under the best of circumstances - has the opposite effect for sexually-transmitted disease. People are unlikely to have sex while in the classroom or while walking from one class to another. There is accordingly no strong connection between allowing a child to enter her school building, on the one hand, and protecting the population at school from HPV, on the other, as there would be if the illness in question were transmitted through casual contact.

Ultimately, it might turn out that the benefits to the population of reducing or eliminating the spread of some kinds of sexually-transmitted HPV outweigh whatever risks accompany vaccination. At that point, mandates could turn out to be warranted. Until more information is in, however, and in the absence of special risks associated with the crowds that descend on a school, the vaccine should probably remain a matter of choice for girls and their families.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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