autism, medicine, and the poison of enthusiasm and superstition
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449
Journal of Health & Biomedical Law, VII (2012): 449-492
© 2012 Journal of Health & Biomedical Law
Suffolk University Law School
Autism, Medicine, and the Poison of Enthusiasm and
Superstition
John Thomas*
Science is the great antidote to the poison of enthusiasm and superstition.
Adam Smith1
In the late 1990s, Andrew Wakefield, a British gastrointestinal surgeon and
researcher,2 began to formulate a novel theory about the relationship between the
* Professor of Law, Quinnipiac University School of Law. J.D., 1982, University of Arizona,
LL.M., 1988, M.P.H., 1996, Yale University. I thank my colleagues who suffered through my
presentation of an earlier draft and, especially, to Neil Feigenson for his insightful comments. 1 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS, bk.
V, ch.1, para. 203 (5th ed. 1904), available at http://www.econlib.org/library/Smith/smWN20.
html#B.V.
The first of those remedies [for social ignorance] is the study of science and
philosophy, which the state might render almost universal among all people of
middling or more than middling rank and fortune; not by giving salaries to
teachers in order to make them negligent and idle, but by instituting some sort
of probation, even in the higher and more difficult sciences, to be undergone
by every person before he was permitted to exercise any liberal profession, or
before he could be received as a candidate for any honourable office of trust
or profit. If the state imposed upon this order of men the necessity of
learning, it would have no occasion to give itself any trouble about providing
them with proper teachers. They would soon find better teachers for
themselves than any whom the state could provide for them. Science is the
great antidote to the poison of enthusiasm and superstition; and where all the
superior ranks of people were secured from it, the inferior ranks could not be
much exposed to it.
Id. 2 Rebecca Smith, Andrew Wakefield - the Man Behind the MMR Controversy, THE TELEGRAPH, Jan.
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childhood measles, mumps, and rubella (“MMR”) vaccine and the onset of autism.3 He
and a dozen colleagues conducted a study of eleven boys and one girl between the ages
of three and ten.4 “We saw several children who, after a period of apparent normality,
lost acquired skills, including communication,” observed Wakefield and his coauthors in
a paper published in The Lancet in 1998.5 Wakefield’s team conducted a number of
diagnostic procedures on the children, including ileocolonoscopy and biopsy, MRI,
electroencephalography, and lumbar puncture.6 They concluded that all of the children
had an “intestinal dysfunction” that was associated with “autistic-spectrum disorders” in
a way that “suggests that the connection is real and reflects a unique disease.”7 They
labeled that disorder “autistic enterocolitis.”8
Wakefield added that his study “did not prove an association between measles,
mumps, and rubella vaccine and the syndrome described.”9 But, he warned, “If there is
a causal link between measles, mumps, and rubella vaccine and this syndrome, a rising
incidence might be anticipated after the introduction of this vaccine in the U.K. in
1988.”10
Before the publication of Wakefield’s findings, the MMR inoculation rate in the
U.K. was 92 percent, nearly the herd immunity requirement of 95 percent necessary to
immunize an entire community.11 Following the publication, the inoculation rate
29, 2010, available at http://www.telegraph.co.uk/health/healthnews/7091767/Andrew-Wake
field-the-man-behind-the-MMR-controversy.html (tracing the MMR controversy and Wakefield’s
subsequent journey). 3 Andrew Wakefield et al., RETRACTED: Ileal-Lymphoid-Nodular Hyperplasia, Non-Specific Colitis,
and Pervasive Developmental Disorder in Children, 351 THE LANCET 637, 637-41 (1998), available at
http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(97)11096-0/fulltext
(discussing onset of behavioral symptoms associated with measles, mumps, and rubella
vaccination). 4 Id. at 637. 5 Id. 6 Id. 7 Id. at 637-39. 8 Brian Deer, Wakefield’s “Autistic Enterocolitis” Under the Microscope, 340 BRIT. MED. J. 838, 838
(2010), available at http://briandeer.com/solved/bmj-pathology.pdf. 9 Wakefield et al., supra note 3, at 641. 10 Id. 11 Brian Deer, MMR Doctor Andrew Wakefield Fixed Data on Autism, THE SUNDAY TIMES, Feb. 8,
2009, available at http://www.thesundaytimes.co.uk/sto/public/news/article148992.ece; see also
How the MMR Scare Led to the Return of Measles, THE SUNDAY TIMES, Feb. 8, 2009, available at
http://www.thesundaytimes.co.uk/sto/public/news/article149001.ece. “Herd immunity” refers
to communal resistance to the spread of disease because the prevalence of immunity, most often
accomplished through vaccination, minimizes the likelihood of one with the disease encountering
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dropped to below 80 percent.12 In 1998, the year of publication, there were fifty six
measles cases in the U.K.13 By 2008, there were 1,348 cases and two confirmed deaths.14
As the measles resurged, criticism mounted. When subsequent studies failed to
find any proof of the connection between MMR vaccine and autism, ten of Wakefield’s
twelve co-authors renounced the study’s conclusions.15 In addition, London’s Sunday
Times reported that Wakefield had falsified his findings.16 On January 28, 2010, the
U.K.’s General Medical Council (“GMC”) concluded what has been called the “longest
and most complex disciplinary hearing ever held,”17 with findings that detailed
Wakefield’s “callous, unethical, and irresponsible” conduct.18 In response, on February
2, 2010, The Lancet retracted Wakefield’s paper.19 In May 2010, the GMC barred
Wakefield from practicing medicine in the U.K. by removing his name from the Medical
Register.20 Finally, in January 2011, the British Medical Journal opined in an editorial that
Wakefield’s paper in The Lancet had been an “elaborate fraud.”21
While the MMR-Autism controversy wound its way through medical journals
one who is susceptible to contracting it. See T. Jacob John & Reuben Samuel, Herd Immunity and
Herd Effect: New Insights and Definitions, 16 EUR. J. EPIDEMIOLOGY 601, 601 (2000). 12 See How the MMR Scare Led to the Return of Measles, supra note 11 (citing a drop in inoculation
rates from 92 percent to below 80 percent following the publication of Wakefield’s paper). 13 See Deer, supra note 11. 14 Id. 15 See Experts Say Autism Bowel Disease May Not Exist, DISCOVERY ONLINE (Apr. 16, 2010),
http://www.intelihealth.com/IH/ihtIH/WSDSC000/333/8014/1364958.html. 16 Deer, supra note 11. 17 Sally Beck, Judgement Day for MMR Rebel: An Investigation that has Blighted Doctor's Life for 12 Years
Finally Approaches Conclusion, MAIL ONLINE, http://www.dailymail.co.uk/news/article-1245518
/Judgement-day-MMR-rebel-investigation-blighted-doctors-life-12-years-finally-approaches-
conclusion.html (last updated Jan. 23, 2010, 11:57 PM). 18 GEN. MED. COUNCIL, FITNESS TO PRACTISE PANEL HEARING, 28 JANUARY 2010 49, 54-55,
available at http://www.rescuepost.com/files/facts-wwsm-280110-final-complete-corrected.pdf. 19 Simon H. Murch et al., Retraction of an Interpretation, 363 THE LANCET 750, 750 (2004). 20 See James Meikle & Sarah Boseley, MMR Row Doctor Andrew Wakefield Struck off Register, THE
GUARDIAN (May 24, 2010), available at http://www.guardian.co.uk/society/2010/may/24/mmr-
doctor-andrew-wakefield-struck-off. 21 Fiona Godlee et al., Wakefield’s Article Linking MMR Vaccine and Autism Was Fraudulent, 342
BRIT. MED. J. 64, 64 (2011), available at http://www.bmj.com/content/342/bmj.c7452.full. In
response, in January 2012, Wakefield filed a lawsuit against the British Medical journal, its editor
in chief, and Brian Deer. Ian Sample, Andrew Wakefield Sues BMJ for Claiming MMR Study Was
Fraudulent, THE GUARDIAN (Jan. 5, 2012, 1:17 PM), available at http://www.guardian.co.uk/
society/2012/jan/05/andrew-wakefield-sues-bmj-mmr. The lawsuit, pending in federal district
court in Texas, alleges that the defendants defamed Wakefield. Id.
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and ethics tribunals in the U.K., it presented in the court system in the U.S. With the
1986 enactment of the National Childhood Vaccine Injury Act, Congress created the
Vaccine Injury Compensation Program (“VICP”).22 The Program provides an exclusive
forum for claims for injuries caused by a number of childhood vaccines, including the
MMR vaccine.23 The claims are resolved not by juries but by Special Masters.24
The VICP consolidated the more than five thousand MMR-autism cases into
the Omnibus Autism Proceeding.25 The Program’s special masters conducted hearings
on six “test cases” and concluded in each that the claimants had not proven a causal link
between the vaccine and autism.26 The U.S. Court of Federal Claims and the U.S. Court
of Appeals for the Federal Circuit upheld the decisions that were appealed.27
Neither the judicial decisions, the ethics findings, nor The Lancet’s retraction
appear to have shaken the Wakefield faithful. Immediately following the GMC’s ethical
decision, the National Autism Association announced on its website, “Parents of children
22 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified
at scattered sections of U.S.C. tit. 42). 23 42 U.S.C. § 300aa-11(a)(2)(A).
No person may bring a civil action for damages in an amount greater than
$1,000 . . . against a vaccine administrator or a manufacturer in a State or
Federal court for damages arising from a vaccine-related injury . . . unless a
petition has been filed, in accordance with section 300aa-16 of this title . . .
Id. The covered vaccines are: diphtheria, tetanus, pertussis (DTP, DTaP, DT, TT, or Td),
measles, mumps, rubella (MMR or any components), polio (OPV or IPV), hepatitis B, Hib,
varicella, rotavirus, and pneumococcal conjugate vaccines. Id. § 300aa-14(a). 24 Id. § 300aa-11(a)(1). 25 Autism General Order #1, In re Claims for Vaccine Injuries Resulting in Autism Spectrum
Disorder or a Similar Neurodevelopmental Disorder; Various Petitioners v. Sec'y of Health &
Human Servs., Autism Master File, 2002 Fed. Cl. 2002 WL 31696785, *1, available at
http://www.uscfc.uscourts.gov/sites/default/files/autism/Autism+General+Order1.pdf
(asserting it is in the best interests of the court and the petitioners involved to consolidate the
cases because of the amount of claims and gravity of the medical issue). 26 Autism Update, In re Claims for Vaccine Injuries Resulting in Autism Spectrum Disorder or a
Similar Neurodevelopmental Disorder; Various Petitioners v. Sec'y of Health & Human Servs.,
Autism Master File, at 2-3, 2011 Fed. Cl., available at http://www.uscfc.uscourts.gov/sites/
default/files/autism/Autism+General+Order1.pdf. Although the test cases do not constitute
precedent, similar cases presenting the same theory of causation will likely be decided the same
way without new evidence. Id. at 3. 27 See generally Cedillo v. Sec’y of Health and Human Servs., 617 F.3d 1328 (Fed. Cir. 2010)
(finding the evidence presented by the petitioners to be unreliable); Hazlehurst v. Sec’y of Health
and Human Servs., 604 F.3d 1343 (Fed. Cir. 2010) (determining the Special Master made no error
in considering the evidence presented and holding there was no causal link).
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with autism around the world are calling the findings against Dr. Andrew Wakefield in
the U.K.’s General Medical Council unjust and a threat to researchers investigating
autism as a medical condition . . . Bravo to Dr. Andrew Wakefield.”28 A visitor to the
Age of Autism website posted this in response to The Lancet’s retraction: “[T]hose who
will stand behind Wakefield . . . will remain standing proudly with integrity, truth, and
honor . . . the [L]ancet will slide into a pool of ignorant denial . . . along with all their lies
and cover ups [sic].”29 As recently as September 5, 2011, Age of Autism posted on its
website, “The allegations against Wakefield remain grotesquely flawed.”30 Perhaps most
dramatically, the director of an autism advocacy group urged in a book published in the
summer of 2011 that the world will place Wakefield’s name among “human rights
dissidents” like Nelson Mandela.31 Moreover, as of January 2012, the online “We
Support Andy Wakefield” petition bore 3,858 signatures.32
Wakefield, who practiced what the British Medical Journal has termed “Piltdown
medicine,”33 is still seen as a defender of human rights: “Before long, the world will
28 PRESS RELEASE, NATIONAL AUTISM ASSOCIATION, PARENTS OF CHILDREN WITH AUTISM
CALL DECISION IN WAKEFIELD TRIAL A THREAT TO MEDICAL INTEGRITY (Jan. 28, 2010),
available at http://www.nationalautismassociation.org/press012810.php. 29 Candace, Comment to The Lancet Retraction, AGE OF AUTISM (Feb. 2, 2010, 2:37 PM),
http://www.ageofautism.com/2010/02/the-lancet-retraction/comments/page/3/#comments. 30 John Stone, MMR, the Murdochs and British Medical Journal: Questions Unanswered as Editor Godlee
Plans Washington Triumph, AGE OF AUTISM, (Sept. 5, 2001, 12:01 AM), http://www.ageof
autism.com/2011/09/mmr-the-murdochs-and-british-medical-journal-questions-unanswered-as-
editor-godlee-plans-washington-.html. The Age of Autism is a website for “those who believe
autism is an environmentally induced illness that it is treatable, and that children can recover.” A
Letter from the Editor, AGE OF AUTISM, http://www.ageofautism.com/a-welcome-from-dan-
olmste.html (last visited Nov. 13, 2011). 31 Mary Holland, Who is Doctor Andrew Wakefield?, in VACCINE EPIDEMIC: HOW CORPORATE
GREED, BIASED SCIENCE, AND COERCIVE GOVERNMENT THREATEN OUR HUMAN RIGHTS,
OUR HEALTH, AND OUR CHILDREN 223, 229 (2011). Mary Holland, Esq. is a founding board
member and managing director of the Elizabeth Birth Center for Autism Law & Advocacy.
Board Members, ELIZABETH BIRT CENTER FOR AUTISM LAW & ADVOCACY, http://www.
ebcala.org/about/board-members (last visited Jan. 8, 2012). Holland is also a founding board
member of the Center for Personal Rights and a member of the Coalition for Vaccine Safety’s
Steering Committee. The Board, CENTER FOR PERSONAL RIGHTS, http://www.centerforpersonal
rights.org/index.php?option=com_content&view=article&id=5&Itemid=66 (last visited Jan. 8,
2012). 32 WE SUPPORT DR. ANDREW WAKEFIELD, http://www.wesupportandywakefield.com/ (last
visited Jan. 8, 2012). 33 Brian Deer, Piltdown Medicine: The Missing Link Between MMR and Autism, BMJ GROUP BLOGS
(Jan. 6, 2011), http://blogs.bmj.com/bmj/2011/01/06/brian-deer-piltdown-medicine-the-miss
ing-link-between-mmr-and-autism/. Brian Deer, who investigated Dr. Wakefield’s research and
reported his findings in a series appearing in the British Medical Journal, compared Wakefield’s
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likely recognize that it was Dr. Wakefield, not his detractors, who stood up for the
practice of medicine and the pursuit of science.”34
Why is it that those who were swayed by a single study of twelve subjects
cannot be “un-swayed” by dozens of studies of thousands of subjects? Is it simply, as
Paul Offit, author of Autism’s False Prophets: Bad Science, Risky Medicine and the Search for a
Cure, has opined that “while it’s very easy to scare people, it’s very hard to unscare
them”?35 Or is it that Wakefield gives parents sufficient “enthusiasm and superstition”
to resist the pull of science?36
This article attempts to explain why many participants in the MMR-autism
debate have refused to accept the greater weight of the scientific evidence. Part I briefly
reviews autism prevalence over time. Part II examines the findings of the Wakefield
ethics hearings and describes the beliefs of those who, despite the ethics hearings’
findings, remain unshakably committed to Wakefield and his work. Part III presents the
theory of cultural cognition, which posits that people are psychologically disposed to
believe what, given their cultural background, they deem honorable and to reject what
they deem to be dishonorable to reject. That part concludes with the observation that
the context of the MMR-autism debate made for the perfect cultural storm in which a
group of “hierarchical individualists” were unlikely ever to reject the findings of an “in-
group” messenger. As one participant in the debate has put it, “Well, I personally feel
that vaccines are implicated in the increase in autism. And frankly, the [criticism of] Dr.
Wakefield’s study doesn’t really alter my beliefs one way or the other.”37 Part IV
concludes this article with some observations about how science might coexist with
research to Piltdown man – a paleontological hoax, lasting over 40 years in which fossilized
fragments were claimed to be the “missing link” between man and ape. Id. See generally Brian
Deer, How the Case Against the MMR Vaccine Was Fixed, 342 BRIT. MED. J. 77 (2011); Brian Deer,
How the Vaccine Crisis Was Meant to Make Money, 342 BRIT. MED. J. 136 (2011); Brian Deer, The
Lancet’s Two Days to Bury Bad News, 342 BRIT. MED. J. 200 (2011) (criticizing Wakefield’s claims
about the MMR vaccine). 34 Holland, supra note 31, at 229. 35 Sharon Begley, Anatomy of a Scare, NEWSWEEK, Mar. 2, 2009, at 42, 47, available at http://
www.thedailybeast.com/newsweek/2009/02/20/anatomy-of-a-scare.html; see also PAUL OFFIT,
AUTISM’S FALSE PROPHETS: BAD SCIENCE, RISKY MEDICINE, AND THE SEARCH FOR A CURE
(2008) (presenting a history of autism research to separate legitimate facts about autism from
“bad science” that consistently misleads the general public). Offit argues that despite what many
people believe, vaccines are not the cause of autism. Offit, supra, at xxvii. 36 SMITH, supra note 1, at Vol. 1, 203. 37 British Medical Journal Finds Autism Study a Fraud; Focus: Constitution; Gulf Oil Spill Blame, CNN
NEWSROOM, (January 6, 2011, 12:01 PM), http://www.cnnstudentnews.cnn.com/TRAN
SCRIPTS/1101/06/cnr.04.html.
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enthusiasm, if not superstition, within the community concerned with the MMR-autism
debate.
I. Autism Through the Years
A. Diagnosis
Swiss psychiatrist Eugen Bleuler coined the word “autism” in 1911 to describe
the unrealistic thought processes that occur in dreams and fantasies. 38 The word
“autism” derives from the Greek word “autos” meaning “self.”39 Bleuler considered
reality-based thoughts the norm and unrealistic, self-reflecting thoughts more refined.40
But, he also used “autism” to describe the thoughts of patients suffering from
schizophrenia.41
Leo Kanner, who founded the world’s first child psychiatry program at Johns
Hopkins and authored Child Psychiatry42 — the first text on the subject43 — published the
first description of autism in his 1943 article, “Autistic Disturbances of Affective
Contact.”44 He presented two case studies of “children whose condition differs so
markedly and uniquely from anything reported so far, that each case merits – and, I
hope, will eventually receive – a detailed consideration of its fascinating peculiarities.”45
Nearly four decades elapsed after Kanner’s seminal article before the word
38 ADAM FEINSTEIN, A HISTORY OF AUTISM: CONVERSATIONS WITH THE PIONEERS 5-6 (2010)
(explaining that Dr. Bleuler distinguished the difference between logical or realistic thinking and
autistic thinking). 39 Id. at 5. 40 Id. at 6. Bleuler believed that autistic thinking was normal thinking for both children and
adults. Id. This was evident to Bleuler from dreams and pretend play of the non-autistic and the
fantasies and delusions of the schizophrenic. Id. 41 Id. Bleuler originally included autism as one of what he called the “four schizophrenias,” which
included: associated disturbance, affective disturbance, ambivalence, and autism. Id. 42 LEO KANNER, CHILD PSYCHIATRY (1935). 43 See Medicine: The Child Is Father, TIME, July 25, 1960, at 78, (outlining Kanner’s revolutionary
work and early achievements in the area of child psychiatry). 44 See generally Leo Kanner, Autistic Disturbances of Affective Contact, 2 NERVOUS CHILD 217-50
(1943), available at http://www.neurodiversity.com/library_kanner_1943.html. There is some
debate regarding whether Kanner’s work was original or whether he borrowed from the work of
Hans Asperger. See FEINSTEIN, supra note 38, at 11. For an example of Asperger’s work, see
Hans Asperger, Autistic Psychopathy in CHILDHOOD (1944), reprinted in AUTISM AND ASPERGER
SYNDROME 37 (Uta Frith ed., Uta Frith trans., 1991) (originally published in German). 45 Kanner, supra note 44, at 217.
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“autism” entered the primary diagnostic instrument for the mental health profession, the
Diagnostic and Statistical Manual of Mental Disorders (“DSM”).46 The first articulation of
DSM was published in 1952, is the result of the efforts of the New York Academy of
Medicine in the late 1920s to lead the medical community out of diagnostic “chaos
towards a nationally accepted standard nomenclature of disease.”47 Perhaps because the
drafting committee did not include child and adolescent psychiatrists, the manual did
not include a diagnosis of autism.48 Rather, the closest diagnosis listed in this first
rendition of DSM-I was “Schizophrenic reaction, childhood type.”49
Beginning in 1968, with the crafting of DSM-II, the American Psychiatric
Association, drafters of the manual, began to make “progress in the classification of
childhood and adolescent disorders.”50 The DSM-II drafters added a note observing
that the “Schizophrenia, childhood type” disorder might include symptoms of “autistic,
atypical and withdrawn behavior.”51
The first two iterations of DSM reflected the views of the dominant
psychoanalytic and sociological thought of the time and “conceived of symptoms as
reflections of broad underlying dynamic conditions or as reactions to difficult life
problems.”52 DSM-III, on the other hand, bore the evidence of a revolution in the
psychiatric profession in the 1970s that transformed disorder classification from “broad,
etiologically defined entities that were continuous with normality to symptom-based,
categorical diseases.”53 As a result, where DSM-I and DSM-II avoided “elaborate
classification schemes, because overt symptoms did not reveal disease entities,” DSM-III
reflected psychiatry’s attempt to “reorganize[] itself from a discipline where diagnosis
played a marginal role to one where it became the basis of the specialty.”54 One of these
diagnoses contained the first listing for autism: “Diagnostic Criteria for Infantile
46 See Mina K. Dulcan, Classification of Psychiatric Disorders, in DULCAN’S TEXTBOOK OF CHILD AND
ADOLESCENT PSYCHIATRY, 61, 61 (Mina K. Dulcan ed., 2010). 47 See generally AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS v (1952) [hereinafter DSM-I]. 48 Dulcan., supra note 46, at 62. 49 Id.; DSM-I, supra note 47, at 28 (diagnosis 000-x28). 50 Dulcan, supra note 46, at 62; see AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS (2d ed. 1968) [hereinafter DSM-II], available at http://libweb.
uoregon.edu/index/cms-filesystem-action/guides/english/dsm.pdf. 51 DSM-II, supra note 50, at 35 (disorder 295.8). 52 Rick Mayes & Allan V. Horwitz, DSM-III and the Revolution in the Classification of Mental Illness, 41
J. HIST. BEHAV. SCI. 249, 249 (2005). 53 Id. See generally AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS (3d ed. 1980) [hereinafter DSM-III]. 54 Mayes & Horwitz, supra note 52, at 250.
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Autism.”55 The criteria include “[o]nset before 30 months of age” and “[p]ervasive lack
of responsiveness to other people.”56
The move toward categorization reached its zenith in 1994 with the publication
of DSM-IV.57 The manual introduced five related disorders:58 autistic disorder,59
Asperger’s Disorder,60 Rett’s Disorder,61 Childhood Disintegrative Disorder,62 and
Pervasive Developmental Disorder Not Otherwise Specified (“PDD-NOS”).63 These
five disorders are usually grouped together under the heading of autism spectrum
disorders (“ASD”). The National Institute of Mental Health summarizes ASD
disorders:
All children with ASD demonstrate deficits in 1) social interaction, 2)
verbal and nonverbal communication, and 3) repetitive behaviors or
interests. In addition, they will often have unusual responses to sensory
experiences, such as certain sounds or the way objects look. Each of
these symptoms runs the gamut from mild to severe.64
55 DSM-III, supra note 53, at 89. 56 Id. 57 See generally AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS IV (1994) [hereinafter DSM-IV]. 58 See id. at 65-78. See generally NAT’L INST. OF MENTAL HEALTH, AUTISM SPECTRUM
DISORDERS: PERVASIVE DEVELOPMENTAL DISORDERS (2008), available at http://cpancf.com/
pdf/nimhautismspectrumdisorders.pdf (hereinafter NIMH) (discussing prevalence, types,
symptoms, diagnoses, and treatment of autism spectrum disorders). 59 Peter E. Tanguay, Autism Spectrum Disorders, in DULCAN’S TEXTBOOK OF CHILD AND
ADOLESCENT PSYCHIATRY, 174, 174 (Mina K. Dulcan ed., 2010) (“[A]utism is defined by the
presence of severe and pervasive impairments in reciprocal social interaction and in verbal and
nonverbal communication skills.”). 60 Id. “The criteria for Asperger’s disorder are identical to those for autistic disorder . . . with the
exception that there is no clinically significant delay in cognitive development or in the
development of age appropriate self-help skills, and no significant delay in language
development.” Id. at 177. 61 NIMH, supra note 58, at 4. “Rett syndrome is relatively rare, affecting almost exclusively
females, one out of 10,000 to 15,000. After a period of normal development, sometime between
6 and 18 months, autism-like symptoms begin to appear.” Id. 62 Id. “The diagnosis requires extensive and pronounced losses involving motor, language, and
social skills. CDD is also accompanied by loss of bowel and bladder control and oftentimes
seizures and a very low IQ.” Id. (citations omitted). 63 Id. This diagnosis is used when there are autistic-like symptoms, “but the criteria for any of the
more specific pervasive developmental disorders (PDD) are not met.” Id. at 2. 64 NIMH, supra note 58, at 5.
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The American Psychiatric Association (“APA”) is currently at work on DSM-
V.65 The organization is supervising field trials of the manual and will accept a third
round of comments in spring 2012.66 The APA expects to release the final version in
May 2013.67 This fifth incarnation will conflate the four autism-related disorders into a
single diagnostic category of “Autism Spectrum Disorders.”68 “The recommendation of
a new category of autism spectrum disorders reflects recognition by the work group that
the symptoms of these disorders represent a continuum from mild to severe, rather than
being distinct disorders.”69 An ASD diagnosis requires the finding of deficits in “social
interaction and communication” and “the presence of repetitive behaviors and fixated
interests and behaviors.”70
65 DSM-5: The Future of Psychiatric Diagnosis, AMERICAN PSYCHIATRIC ASS’N, http://www.dsm5.
org/Pages/Default.aspx (last visited Jan. 7, 2012). 66 Id. 67 DSM-5 Timeline, AMERICAN PSYCHIATRIC ASSOCIATION, http://www.dsm5.org/about/Pages/
Timeline.aspx (last visited Jan. 3, 2012). 68 DSM-5 Proposed Revisions Include New Category of Autism Spectrum Disorders, AMERICAN
PSYCHIATRIC ASSOCIATION (Feb. 10, 2010, 12:01 AM), http://www.dsm5.org/Newsroom/
Documents/Autism%20Release%20FINAL%202.05.pdf. 69 Id. (quoting Edwin Cook, M.D, a member of the DSM-5 Neurodevelopmental Disorders Work
Group). 70 Id.; see A 09 Autism Spectrum Disorder, AMERICAN PSYCHIATRIC ASS’N, http://www.dsm5.org/
proposedrevision/pages/proposedrevision.aspx?rid=94 (last updated Jan. 26, 2011). The
proposed revision provides:
Autism Spectrum Disorder. Must meet criteria A, B, C, and D:
A. Persistent deficits in social communication and social interaction across
contexts, not accounted for by general developmental delays, and manifest by
all 3 of the following:
1. Deficits in social-emotional reciprocity; ranging from abnormal
social approach and failure of normal back and forth conversation
through reduced sharing of interests, emotions, and affect and
response to total lack of initiation of social interaction,
2. Deficits in nonverbal communicative behaviors used for social
interaction; ranging from poorly integrated-verbal and nonverbal
communication, through abnormalities in eye contact and body-
language, or deficits in understanding and use of nonverbal
communication, to total lack of facial expression or gestures.
3. Deficits in developing and maintaining relationships, appropriate
to developmental level (beyond those with caregivers); ranging from
difficulties adjusting behavior to suit different social contexts through
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B. Prevalence
In 2005, the journal Pediatrics published one of the first reports of autism
prevalence in the U.S.71 The article drew conclusions from data collected by the U.S.
Department of Education, Office of Special Education Programs (“OSEP”).72 OSEP
tabulates state-supplied data regarding children enrolled in state special education
programs.73 Since 1992, OSEP has mandated that all states report the number of
children in special education programs who have been diagnosed with autism.74 These
data, the “only available source for national [autism] prevalence estimates,” allow for the
difficulties in sharing imaginative play and in making friends to an
apparent absence of interest in people
B. Restricted, repetitive patterns of behavior, interests, or activities as
manifested by at least two of the following:
1. Stereotyped or repetitive speech, motor movements, or use of
objects; (such as simple motor stereotypies, echolalia, repetitive use
of objects, or idiosyncratic phrases).
2. Excessive adherence to routines, ritualized patterns of verbal or
nonverbal behavior, or excessive resistance to change; (such as
motoric rituals, insistence on same route or food, repetitive
questioning or extreme distress at small changes).
3. Highly restricted, fixated interests that are abnormal in intensity
or focus; (such as strong attachment to or preoccupation with
unusual objects, excessively circumscribed or perseverative interests).
4. Hyper-or hypo-reactivity to sensory input or unusual interest in
sensory aspects of environment; (such as apparent indifference to
pain/heat/cold, adverse response to specific sounds or textures,
excessive smelling or touching of objects, fascination with lights or
spinning objects).
C. Symptoms must be present in early childhood (but may not become fully
manifest until social demands exceed limited capacities)
D. Symptoms together limit and impair everyday functioning.
Id.
71 Craig J. Newschaffer et al., National Autism Prevalence Trends From United States Special Education
Data, 115 PEDIATRICS e277, e277 (2005), available at http://pediatrics.aappublications.org/
content/115/3/e277.full.pdf. 72 Id. 73 Id. 74 Id.
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computation of prevalence rates over time among school-aged children.75 From 1994
through 2004, autism prevalence rates for children between the ages of six and twenty-
one years increased by an average of more than twenty percent annually.76 The data for
children aged three to five years, tabulated from 2000 through 2004, revealed a similar,
though less dramatic, trend.77
The authors noted that some researchers had theorized that the relatively recent
identification of the autism disorder may have resulted in the reclassification of some
mental health disorders to autism, producing a falsely elevated number of new autism
cases.78 “Because there was no indication of decreases in one or another of these
categories concomitant with, and of similar magnitude to, increases in autism
classification prevalence,” the authors rejected a finding of “diagnostic shifting.”79
The Autism and Developmental Disabilities Monitoring (“ADDM”) Network
of the Centers for Disease Control (“CDC”) has published two reports on ASD
prevalence. 80 These studies reported prevalence findings in eight year old children, the
point of “‘peak prevalence,’ or the age at which most children [with ASD] have been
identified. . . .”81 The 2007 report, tabulating 2002 data, found ASD prevalence to range
from one in 300 to one in 100, and average one in 150 children.82
75 See id. at e277, e280. 76 Newschaffer et al., supra note 71, as reflected in online presentation of data here: http://
www.taap.info/Gallup%202005.pdf. 77 Id. 78 Newschaffer et al., supra note 71, at e280 (noting possible “diagnostic shifting” from mental
retardation and speech and language impairment to autism). 79 Id. (discussing why diagnostic shifting theories are not supported by data to explain the
increase of autism cases). 80 See OFFICE OF AUTISM RESEARCH COORDINATION, U.S. DEP’T OF HEALTH AND HUMAN
SERVICES, REPORT TO CONGRESS ON ACTIVITIES RELATED TO AUTISM SPECTRUM DISORDER
AND OTHER DEVELOPMENTAL DISABILITIES UNDER THE COMBATING AUTISM ACT OF 2006 (FY
2006–FY 2009), 37-8 (Dec. 2010, Updated Apr. 2011), available at http://iacc.hhs.gov/
reports/reports-to-congress/FY2006-2009/caa-full-report-2006-2009.pdf [hereinafter REPORT
TO CONGRESS] (citing two reports of ASD prevalence). 81 Id. at 39. 82 Id. at 37; see CATHERINE RICE, CENTERS FOR DISEASE CONTROL AND PREVENTION, Prevalence
of Autism Spectrum Disorders - Autism and Developmental Disabilities Monitoring Network, 14 sites, United
States, 2002, 56 MORBIDITY & MORTALITY WKLY. REP. 12 (2007), available at http://www.
cdc.gov/mmwr/preview/mmwrhtml/ss5601a2.htm [hereinafter RICE, 2002]. The study
tabulated data from fourteen sites:
In this study, six ADDM sites (Arizona, Georgia, Maryland, New Jersey, South
Carolina, and West Virginia) reported the prevalence for children who were
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The second report, reporting on 2006 data and published in 2009, found an
increased prevalence of approximately one in 110 children.83 This represented an
average increase in prevalence of ASD from 2002 to 2006 of fifty-seven percent.84 This
report also revealed that prevalence for boys was 14.5 per 1,000 compared with 3.2 per
1,000 girls.85
The 2009 report concluded with the observation that, “[a]lthough improved
ascertainment accounts for some of the prevalence increases . . . a true increase in the
risk for children to develop [autism] symptoms cannot be ruled out.”86
The 2005 report in Pediatrics sampled only those children in special education
programs while both ADDM studies sampled a modest number of sites across the
country.87 In the summer of 2011, researchers from Yale and George Washington
Universities published a study designed to augment the available evidence of ASD
prevalence by sampling an entire population of elementary school children.88 Since
2001, in response to the recommendation of the U.S. Centers for Disease Control,
South Korea has required the MMR vaccine as a condition to children enrolling in
school, resulting in a ninety-nine percent vaccination rate.89 The researchers obtained
eight years old in 2000 (born in 1992). An additional eight sites (Alabama,
Arkansas, Colorado, Missouri, North Carolina, Pennsylvania, Utah, and
Wisconsin) participated in the second study year, determining the prevalence
for children who were eight years old in 2002 (born in 1994).
REPORT TO CONGRESS, supra note 80, at 37. 83 See CATHERINE RICE, CENTERS FOR DISEASE CONTROL AND PREVENTION, Prevalence of Autism
Spectrum Disorders - Autism and Developmental Disabilities Monitoring Network, United States, 2006, 58
MORBIDITY AND MORTALITY WKLY. REP. SURVEILLANCE SUMMARIES 1 (2009), available at
http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5810a1.htm [hereinafter RICE, 2006]. This
study tabulated data from eleven sites around the country: Alabama, Arizona, Colorado, Florida,
Georgia, Maryland, Missouri, North Carolina, Pennsylvania, South Carolina, and Wisconsin. Id. 84 Id. 85 Id. 86 Id. 87 See Newschaffer et al., supra note 71, at e277; REPORT TO CONGRESS, supra note 80, at 11;
RICE, 2002, supra note 82 (study utilizing data from states across the country including: Arizona,
Georgia, Maryland, New Jersey, South Carolina, West Virginia, Alabama, Arkansas, Colorado,
Missouri, North Carolina, Pennsylvania, Utah, and Wisconsin). 88 Young Shin Kim et al., Prevalence of Autism Spectrum Disorders in a Total Population Sample, 168 AM.
J. PSYCHIATRY 904, 905-07 (2011). The study ran from 2005-2009 in a suburb of Seoul, South
Korea, and included 33 schools with 36,592 students. Id. at 905. 89 Centers for Disease Control, Elimination of Measles – South Korea, 2001 – 2006 ,56 MORBIDITY
AND MORTALITY WKLY. REP. 304, 304-07 (April 6, 2007), available at http://www.
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data on all seven to twelve year olds in a South Korean community.90 They obtained
information from both a group exhibiting a high probability of ASD, the “special
education schools,” and a low probability, the “regular schools.”91 The researchers
screened children and offered a questionnaire to parents of children who screened
positive.92
The study revealed ASD prevalence rates of 2.64 percent in the total
population, with 1.89 percent in the general-population group and 0.75 percent in the
high-probability group.93 The male to female ratios were 5.1 to 1 in the high probability
population and 2.5 to 1 in the general population.94
As the researchers noted, “There is a striking difference between our estimated
prevalence of 2.64% for any ASD and previously reported estimates ranging from 0.6%
to 1.8%.”95 But, they concluded that their use of “gold standard” diagnostic tools and
careful examination of the data rendered their results valid, and would strengthen the
design of future prevalence studies.96
These reports present the questions whether ASD is increasing or whether only
its diagnosis is increasing. At the very least, we now know that ASD affects a significant
portion of the population: “Autism now affects more American children than childhood
cancer, diabetes and AIDS combined.”97 As journalist Robert MacNeil has observed,
cdc.gov/mmwr/preview/mmwrhtml/mm5613a3.htm. 90 Kim et al., supra note 88, at 905. 91 Id. Of the students issued questionnaires, 103 students from the special education schools
returned information and 23,234 student from regular schools returned forms. Id. at 907. The
responses from the special education schools included 82 percent boys, while the regular schools
included only 52 percent boys. Id. 92 Kim et al., supra note 88, at 905. 93 Id. at 908. The study noted a significant difference in prevalence rates from this group and
prevalence rates previously reported through other studies at 0.6 percent and 1.8 percent. Id. 94 Id. at 907. The high-probability group studied included children who were enrolled in the
Disability Registry or special education schools and those in regular schools with psychiatric or
psychological service use. Id. The general-population sample included children in regular schools
without psychiatric or psychological service use. Id. at 909. 95 Kim et al., supra note 88, at 908. The research team went on to note possible cultural
variations for reported statistics as contributing to possible report bias, and that the “less than
optimal participation rate” in the general-population research sample of 63 percent is another
possible factor which limited the statistical applicability of the data. Id. A response rate
approaching 80 percent is the preferred practice in epidemiological studies to limit the impact of
reporting bias on data. Id. 96 Id. at 908-10. 97 PBS Newshour: Autism Now: Exploring the 'Phenomenal' Increase in U.S. Prevalence, (PBS television
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“[A] majority of . . . researchers . . . believe that wider diagnosis explains only part of the
increase in autism numbers.”98 Whether further explanation lies in environmental
causes, infectious agents, or nutritional factors remains a mystery.99 As one researcher
put it, unraveling that mystery will take further research, including a peak into the human
genome:
There are a variety of factors that could be influencing development,
and they may play a role at different points in development. But I think
multiple factors contribute not just across the population but within
any one individual. So when I say that I think autism is multifactorial in
its causation, I think that applies to even at the individual level so that it
might take two or three susceptibility genes combined with two or
three environmental factors at critical junctures.100
Might one of those environmental factors be the childhood MMR vaccine?
II. Andrew Wakefield, MD
A. An Anatomy of a Scientific Fraud
The GMC’s Fitness to Practice Panel convened on July 16, 2007 to consider
Wakefield’s “conduct, duties and responsibilities” in conducting the study that resulted
in The Lancet publication.101 The Panel, comprising three physicians and two lay people,
met for a total of 148 days over a two and a half year period and considered the
testimony of three dozen witnesses.102
broadcast Apr. 19, 2011), available at http://www.pbs.org/newshour/bb/health/jan-june11/
autism2preval_04-19.html. 98 Id. 99 Id. 100 Id. (quoting statement by Dr. Irva Hertz-Piccotto of the University of California, Davis during
interview with Robert MacNeil). 101 GEN. MED. COUNCIL, supra note 18, at 1-3. The Panel also considered the conduct of
Professors John Walker Smith and Simon Murch, the two co-authors who had not renounced the
study. Id. The Panel focused exclusively on ethical inquiries and did not consider “whether there
is or might be any link between the MMR vaccination and autism. Id. at 2. When the panel
considered the conduct of John Walker and Simon Murch it was a stated goal to take into
account the particular circumstances that each professor faced at the “material times” to the
relevant conduct and avoid making judgments with the benefit of hindsight. Id. Among the
stated “conduct, duties and responsibilities” that the panel considered was the duty to conduct
research within ethical constraints. Id. at 3. 102 Id. at 2.
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The Panel found a number of aspects of Wakefield’s conduct to be unethical.
First, the Panel focused on conflicts of interest. Wakefield initiated his study after being
retained by a law firm that represented parents alleging that the MMR vaccine had
caused autism in their children.103 Wakefield accepted approximately $750,000 in
compensation from the law firm without disclosing to The Lancet either the payment or
its source, a “legal aid board” designed to underwrite access for the poor to legal
services.104 In addition, some nine months before The Lancet published his paper,
Wakefield filed a patent application on a single measles vaccine that could find success
in the market place only if parents chose not to inoculate their children with the MMR
vaccine.105
The Panel also commented on Wakefield’s selection process for study subjects.
The subjects were neither randomly selected nor were they, as Wakefield, claimed, “self
referred.”106 Rather, most of the families were recruited through an anti-MMR campaign
and most were clients of the plaintiffs’ law firm that had retained Wakefield.107
The conduct of the study, itself, also troubled the Panel. Wakefield and his
coworkers administered a number of invasive procedures upon the study subjects,
including anesthesia, radioactive beverages, x-rays, ileocolonoscopies, lumbar punctures,
MRIs, and EEGs.108 Because the subjects had not presented appropriate symptoms, the
procedures were not clinically indicated.109 Rather, Wakefield had subjected the children
103 GEN. MED. COUNCIL, supra note 18, at 4. 104 Brian Deer, Exposed: Andrew Wakefield and the MMR-autism fraud, BRIANDEER.COM, http://
briandeer.com/mmr/lancet-summary.htm (last visited Jan. 5, 2012) (stating that the amount
billed by Wakefield was “£435,643 (then about $750,000 US)”). The U.K. legal aid fund was the
source of the funds the law firm used to compensate Wakefield. Id. The U.K. legal aid fund is
“run by the government to give poorer people access to justice.” Id.; see also GEN. MED.
COUNCIL, supra note 18, at 4-7. 105 See Deer, supra note 104 (referencing the patent found during an investigation conducted by
The Sunday Times); GEN. MED. COUNCIL, supra note 18, at 49-50 (outlining findings as to
Wakefield’s conflict of interest concerning the patent and the article). 106 See GEN. MED. COUNCIL, supra note 18, at 103-05 (explaining the Panel’s conclusion that the
children in the study were not “self-referred”). 107 Deer, supra note 104. The majority of the children involved in the study “had been pre-
selected through MMR campaign groups . . . most of their parents were clients and contacts of
the lawyer.” Id.; see also GEN. MED. COUNCIL, supra note 18, at 103-105. 108 Deer, supra note 104; see also GEN. MED. COUNCIL, supra note 18, (describing eleven out of the
twelve children’s individual circumstances and the Panel’s findings). 109 GEN. MED. COUNCIL, supra note 18, at 11-42. The Panel found that the lumbar puncture that
was administered was not clinically indicated for Children 3, 9 and 12. Id. In addition, the Panel
found that Dr. Wakefield’s conduct was contrary to the clinical interests of ten of the twelve
children. Id.
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“to a programme of investigations for research purposes without having Ethics
Committee approval for such research.”110 In addition, Wakefield falsely reported to The
Lancet that he had presented this regimen to the hospital ethics committee.111 Moreover,
to obtain “control” blood samples, Wakefield turned to the children who attended his
son’s birthday party.112 There, without proper informed consent or parents’
authorization, he obtained blood samples from the attendees and “as a reward at the end
of the party the children who had given blood all received £5.”113 Compounding the
ethical violation, at a conference in California, Wakefield publicly referred to the event in
“humorous terms” and expressed “an intention to obtain research samples in similar
circumstances in the future.”114
In sum, the Panel found Wakefield’s conduct to be “dishonest . . . irresponsible
. . . [and] misleading.”115 The GMC then reviewed the Panel’s findings and characterized
Wakefield’s conduct:
The Panel made findings of transgressions in many aspects of Dr
Wakefield’s research. It made findings of dishonesty in regard to his
writing of a scientific paper . . . [and] in respect of the [Legal Aid
Board] funds secured for research . . . Furthermore he was in breach of
his duty to manage finances as well as to account for funds that he did
not need to the donor of those funds. In causing blood samples to be
taken from children at a birthday party, he callously disregarded the
pain and distress young children might suffer and behaved in a way
which brought the profession into disrepute.116
The appropriate penalty, concluded the GMC, was that Wakefield’s name be
stricken from the Medical Register, precluding him from practicing medicine in the
110 Id. at 13, 16, 18, 24, 25, 31. The Panel made this finding for Children 1-6 and 9. Id. Children
8 and 12 were also found to have undergone investigation for Wakefield’s research without the
Ethics Committee’s approval. Id. at 34-35, 37. 111 Deer, supra note 104. Dr. Wakefield made this false report in order to satisfy The Lancet’s
patient-protection requirements. Id. 112 GEN. MED. COUNCIL, supra note 18, at 54. 113 Id. The Panel found that Dr. Wakefield’s was unethical and that he “. . . abused [his] position
of trust as a medical practitioner.” Id. at 55. 114 GEN. MED. COUNCIL, supra note 18, at 54. 115 Id. at 44. 116 GEN. MED. COUNCIL, DETERMINATION ON SERIOUS PROFESSIONAL MISCONDUCT (SPM)
AND SANCTION 8, available at http://www.gmc-uk.org/Wakefield_SPM_and_SANCTION.pdf
_32595267.pdf.
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U.K.117
Upon reading the Fitness to Practise Panel’s conclusions, The Lancet retracted
Wakefield’s paper.118 The Journal found particularly damning the false claims that
“children were ‘consecutively referred’ and that investigations were ‘approved’ by the
local ethics committee.”119
Following The Lancet’s retraction, the British Medical Journal took the
extraordinary step of publishing an editorial entitled, “Wakefield’s Article Linking MMR
Vaccine and Autism Was Fraudulent.”120 In that piece, the journal’s editors observed
that Wakefield’s article was “fatally flawed both scientifically and ethically” and “was in
fact an elaborate fraud.”121 The authors characterized Wakefield’s conduct in the
starkest of terms: “Is it possible that he was wrong, but not dishonest: that he was so
incompetent that he was unable to fairly describe the project, or to report even one of
the 12 children’s cases accurately? No.”122
The British Medical Journal editors pointed to the efforts of journalist Brian Deer
in uncovering “the extent of Wakefield’s fraud.”123 Through a series of articles for
London’s Sunday Times, Deer discovered fraud in each of the twelve cases reported in
The Lancet paper.124 Indeed, “in no single case could the medical records be fully
117 Id. at 9. Doctors who are not registered with the General Medical Counsel may not practice in
the U.K. See THE MEDICAL REGISTER, GENERAL MEDICAL COUNCIL, http://www.gmc-
uk.org/doctors/medical_register.asp (last visited January 28, 2012). 118 The Editors of the Lancet, Retraction—Ileal-lymphoid-nodular hyperplasia, non-specific colitis, and
pervasive developmental disorder in children, 375 THE LANCET 455, 455, available at
http://download.thelancet.com/pdfs/journals/lancet/PIIS0140673610601754.pdf?id=4d037fefc
b72946c:-2bdd2a5a:1352ff74261:26311327952419579. 119 Id. 120 Godlee et al., supra note 21, at 64. 121 Id. at 64. Critics to the vaccine scare quickly pointed out the faults in Wakefield’s paper,
including the lack of experimental controls, and that it relied on the beliefs and memory of
parents. Id. The paper was finally retracted twelve years later. Id. 122 Id. at 65 (explaining that Wakefield’s paper was fraudulent, that he put in a great deal of effort
to obtain the results he wanted, and his paper was full of misreporting). 123 Godlee et al., supra note 21, at 64. Seven years after first looking into the connection of the
MMR vaccine and autism, Deer illustrated Wakefield’s fraud. Id. Deer used interviews,
documents, and data that were made public at the General Medical Council hearings to show that
Wakefield altered many facts about the patients’ medical histories in order to support Wakefield’s
claim that he identified a new syndrome. Id. 124 Godlee et al., supra note 21, at 65; Brian Deer, Exposed: Andrew Wakefield and the MMR-Autism
Fraud, BRIANDEER.COM, http://briandeer.com/mmr/lancet-summary.htm, (last visited Jan. 7,
2012) (summarizing Deer’s articles). Deer’s first investigation into Wakefield’s paper was
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reconciled with the descriptions, diagnoses, or histories published in [The Lancet].”125
Although Deer and the GMC had unmasked the fraud, repairing the damage will take
some time:
Meanwhile the damage to public health continues, fuelled by
unbalanced media reporting and an ineffective response from
government, researchers, journals, and the medical profession.
Although vaccination rates in the United Kingdom have recovered
slightly from their 80% low in 2003-4, they are still below the 95% level
recommended by the World Health Organization to ensure herd
immunity. In 2008, for the first time in 14 years, measles was declared
endemic in England and Wales. Hundreds of thousands of children in
the UK are currently unprotected as a result of the scare, and the battle
to restore parents’ trust in the vaccine is ongoing.126
Because “[t]o conclude that [a child’s] condition was the result of his MMR
vaccine, an objective observer would have [had] to emulate Lewis Carroll’s White Queen
and be able to believe 6 impossible (or at least highly improbable) things before
breakfast,” one might expect that the revelation of fraud inexorably would lead
Wakefield’s followers to reject his claims.127
B. The Unshakably Faithful
1. The Followers
In November 2011, the National Autism Association (“NAA”) held its annual
National Autism Conference, which it billed as featuring “the world’s leading experts on
autism.”128 The autism expert who gave the keynote address was none other than
published in 2004 and it set forth the possibility of fraud, unethical treatment of children, and a
conflict of interest, since Wakefield was involved in a lawsuit against the manufacturers of the
MMR vaccine. Godlee et al., supra note 21, at 65. 125 Godlee et al., supra note 21, at 65. Deer compared the children’s medical records with what
Wakefield published by focusing on whether the research was true and found evidence of
numerous falsifications. Id. The General Medical Council built on Deer’s findings and launched
its own investigation that centered on whether Wakefield’s research was ethical. Id. 126 Id. at 65 (citations omitted) (describing the ramifications of Wakefield’s findings). 127 Snyder ex rel. Snyder v. Sec’y of Dept. of Health and Human Servs., No. 01-162V, 2009 WL
332044 (Fed. Cl. Feb. 12, 2009). Parents alleged their son contracted autism and chronic
gastrointestinal dysfunction through the use of vaccines. Id. 128 See NATIONAL AUTISM CONFERENCE, NATIONAL AUTISM CONFERENCE PROGRAM GUIDE 3
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Andrew Wakefield.129 NAA’s biography for Wakefield omits any reference to the
retraction of The Lancet paper, the GMC’s findings of fraud, or his loss of his medical
license.”130 Furthermore, in its presentation of causes of autism, NAA’s website
contains an “MMR” page that presents Wakefield’s research as if it remains to this day
unimpeachable;
Dr. Andrew Wakefield first cautioned parents of the potential link
between autism and the MMR vaccine in 1998. He raised fears that the
MMR vaccination could trigger bowel disorders in susceptible children.
His studies have shown the presence of persistent measles virus in
children with ileocolonic lymphonodular hyperplasia, which was shown
repeatedly in children with developmental disorders. Dr. Wakefield’s
work confirmed an association between the presence of measles virus
and gut pathology in children.131
The NAA has been unwavering in its support of Wakefield. In the hours
following the GMC’s striking of his name from the list of those licensed to practice
medicine in the U.K., the NAA issued a press release defending Wakefield and asserting
that the GMC’s actions were but an attempt to suppress “science linking vaccines and
autism . . . at the expense of children’s health.”132 Moreover, NAA is one of the
organizations that sponsors an online “We Support Andrew Wakefield” petition that
(2011), available at http://nationalautismconference.org/2011/FINAL%20GUIDE%20BOOK.
pdf (giving details of the National Autism Conference); see also NATIONAL AUTISM ASSOCIATION,
http://www.nationalautismassociation.org/index.php (last visited Jan. 7, 2012) (describing the
NAA). 129 See Conference Schedule, NATIONAL AUTISM CONFERENCE, http://nationalautismconference.
org/fullschedule.htm (last visited Jan. 7, 2012) (noting that Wakefield was the featured speaker on
the evening of the conference’s last full day, Saturday, November 12). 130 See Speaker Bios and Presentations, NATIONAL AUTISM CONFERENCE (2011), available at
http://nationalautismconference.org/speakerbios.htm#wakefield (last visited January 30, 2012)
(outlining Wakefield’s credentials). “Dr. Wakefield is an academic gastroenterologist. Trained as
a GI surgeon and experimental gastroenterologist in London and Toronto. Published widely on
inflammatory bowel disease and latterly, autism and its links to intestinal disease. [sic]” Id. 131 What Causes Autism, NATIONAL AUTISM ASSOCIATION, http://www.nationalautism
association.org/mmr.php (last visited Jan. 7, 2012). 132 See Press Release, National Autism Association, National Autism Association Says GMC
Actions Against Wakefield Show Lack of Scientific Integrity (May 24, 2010), available at
http://www.nationalautismassociation.org/press052410.php (standing behind Dr. Wakefield and
quoting the board chair, Lori McIlwain as saying, “The message is clear, scientists who dare to
question the safety of vaccines do so at the risk of their careers.”).
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declares, among other things, that Wakefield “is a man of honesty, integrity, courage,
and proven commitment to children and the public health” and that his “research is
rigorous, replicated, biologically valid, clinically evidenced, corroborated by published,
peer-reviewed research in an abundance of scientific disciplines, and consistent with
children’s medical problems.”133
Some advocates of the link between MMR vaccine and autism did change
position in light of revelations about Wakefield’s study. For example, Alison Singer, a
senior executive of Autism Speaks, resigned from the group in January 2009 and urged it
to use its resources to look elsewhere for answers because “looking where we know the
answer isn’t is one less dollar we have to spend where we might find new answers. The
fact is that vaccines save lives; they don’t cause autism.”134 In response, Autism Speaks
dropped its opposition to the MMR vaccine and urged parents to vaccinate their
children.135 In addition, the organization embraced an August 2011 Institute of
Medicine (“IOM”) report136 that rejected any link between the MMR vaccine and
autism.137
The IOM report, the largest study of its kind ever undertaken, endeavored “to
133 WE SUPPORT DR. ANDREW WAKEFIELD, http://www.wesupportandywakefield.com (last
visited Jan. 9, 2012). This website was created in order to show support for Dr. Wakefield as well
as inform the public about Dr. Wakefield’s mission and the controversy surrounding it. Id.
There are also several other organizations that support Dr. Wakefield such as Autism One,
Autism Research Institute, Generation Rescue, SafeMinds, Schafer Autism Report, Talk About
Curing Autism, and Unlocking Autism. Id. 134 Richard Luscombe, Charity Chief Quits Over Autism Row, THE OBSERVER, Jan. 24, 2009,
http://www.guardian.co.uk/lifeandstyle/2009/jan/25/autism-mmr-vaccine. 135 AUTISM SPEAKS, Information About Vaccines and Autism, http://www.autismspeaks.org/science/
policy-statements/information-about-vaccines-and-autism (last visited Jan. 9, 2012).
Many studies have been conducted to determine if a link exists between
vaccination and increased prevalence of autism, with particular attention to the
measles-mumps-rubella (MMR) vaccine and those containing thimerosal.
These studies have not found a link between vaccines and autism. We strongly
encourage parents to have their children vaccinated.
Id. 136 INSTITUTE OF MEDICINE, ADVERSE EFFECTS OF VACCINES: EVIDENCE AND CAUSALITY 25-
26 (Kathleen Stratton et al., eds., 2011), available at http://www.nap.edu/catalog.php?
record_id=13164 (discussing the various diseases children were at risk of being infected with due
to the unavailability of vaccines). 137 Geraldine Dawson, Ph.D., Message from the Chief Science Officer regarding the Institute of Medicine’s
report on Adverse Effects of Vaccines, AUTISM SPEAKS OFFICIAL BLOG (August 26, 2011)
http://blog.autismspeaks.org/tag/national-academy-of-sciences.
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assess dispassionately the scientific evidence” concerning the safety of a number of
vaccines, including MMR.138 The investigating committee examined both
epidemiological data regarding the link between the MMR vaccine and autism and the
mechanistic evidence, both clinical and biological, explaining the medical mechanism
that might enable the vaccine to catalyze the development of autism.139
In examining the epidemiological evidence, the committee considered twenty-
two studies published between 1999 and 2010.140 Winnowing the studies to those
exhibiting sufficient “validity and precision,” the committee concluded with a “high
degree of confidence” that the epidemiologic evidence did not support a claim of a
causal relationship between the MMR vaccine and autism.141
The committee was able to find only four mechanistic studies examining the
relationship between the vaccine and autism.142 Three of those studies demonstrated
only that some children were diagnosed with autism after receiving a vaccine, but
provided no evidence that the vaccine caused the onset of autism.143 Only a single study
provided any evidence of a biological mechanism by which the vaccine might trigger
autism, but in that study, the vaccinated child did not develop autism.144 As a result, the
committee concluded that “mechanistic evidence regarding an association between
MMR vaccine and autism as lacking.”145
Coming on the heels of the Wakefield ethics investigation and The Lancet
retraction, one might have expected the IOM report to put an end to suspicions about
the relationship between the MMR vaccine and autism. But, that was not to be. Age of
138 INSTITUTE OF MEDICINE, supra note 136, at ix. 139 Id. at 35.
Two streams of evidence from the peer-reviewed literature support the
committee’s causality conclusions: (1) epidemiologic evidence derived from
studies of populations (most often based on observational designs but
randomized trials when available), and (2) clinical and biological (mechanistic)
evidence derived primarily from studies in animals and individual humans or
small groups.
Id. 140 Id. at 112-14. 141 Id. at 114. 142 Id. at 114. One of the studies was Wakefield’s Lancet paper. Id. 143 INSTITUTE OF MEDICINE, supra note 136, at 114-15. More specifically, those studies “did not
provide evidence beyond temporality.” Id. 144 Id. at 115. Initially, this fact was unreported. Id. 145 Id. The publications did not contribute to the weight of mechanistic evidence. Id.
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Autism, a group critical of the vaccine and supportive of Andrew Wakefield, rejected the
study, largely because it “was paid for by the Department of Health and Human
Services, the government agency which is also a defendant against the vaccine-injured in
the government’s vaccine court.”146 Age of Autism warned that parents “should still be
concerned.”147
Age of Autism is not the lone, remaining skeptic. Perhaps the most notorious
among skeptics is model and actress, Jenny McCarthy.148 She rejected the Wakefield
ethics investigation as “dubious . . . allegations”149 and added in a Huffington Post op-ed
piece, “I have never met stronger women than the moms of children with autism. Last
week, this hoopla [about the GMC’s Wakefield investigation] made us a little stronger,
and even more determined to fight for the truth about what’s happening to our kids.”150
In her foreword to Wakefield’s 2010 book, Callous Disregard: Autism and Vaccines: The
Truth Behind a Tragedy, McCarthy elevated the man to heroic status: “For hundreds of
thousands of parents around the world, myself included, Andy Wakefield is a symbol of
strength and conviction that all parents of children with autism can use to fight for truth
and the best lives possible for their kids.”151
McCarthy is not the only celebrity supporting Wakefield. Recently, actor Chuck
Norris published a commentary in which he declared that the “link between vaccines
and autism” is a “biological certainty.”152 Given that certainty, the appropriate parental
146 New IOM Report on Vaccine Adverse Effects Shows Alarming Lack of Good Science SafeMinds Notes:
Parents Should Still be Concerned, AGE OF AUTISM (Aug. 26, 2011, 5:46 AM), http://www
.ageofautism.com/2011/08/new-iom-report-on-vaccine-adverse-effects-shows-alarming-lack-of-
good-science-safeminds-notes-parent.html [hereinafter NEW IOM REPORT]; see also John Stone,
Desperate British Medical Journal Editor Godlee Turns on Wakefield’s Co-authors, AGE OF AUTISM (Nov.
10, 2011, 12:01 AM), http://www.ageofautism.com/dr-andrew-wakefield/page/2/. 147 See NEW IOM REPORT, supra note 146. 148 See Jenny McCarthy, THE INTERNET MOVIE DATABASE , http://www.imdb.com/name/
nm0000189/ (last visited Jan. 31, 2012); see also JENNY MCCARTHY BODY COUNT,
http://jennymccarthybodycount.com (last visited Jan. 31, 2012) (publicizing Jenny McCarthy’s
beliefs about the relationship between vaccines and autism diagnosis); GENERATION RESCUE |
JENNY MCCARTHY’S AUTISM ORGANIZATION, http://www.generationrescue.org/ (last visited
Jan. 31, 2012) (promoting Jenny McCarthy’s charity organization, Generation Rescue, dedicated
to supporting the recovery of children with autism). 149 Jenny McCarthy, In the Vaccine-Autism Debate, What Can Parents Believe?, THE HUFFINGTON
POST (Jan. 10, 2011, 3:14 PM), http://www.huffingtonpost.com/jenny-mccarthy/vaccine-
autism-debate_b_806857.html. 150 Id. 151 ANDREW J. WAKEFIELD, CALLOUS DISREGARD: AUTISM AND VACCINES: THE TRUTH
BEHIND A TRAGEDY iv (2010). 152 Chuck Norris, Link Between Autism, Vaccines ‘Biological Certainty’, WORLD NEWS DAILY (Nov. 4,
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response is clear: “It is your health, and they are your children, entrusted to you by God,
so be bold in ensuring their safety and welfare. You still have the constitutional right to
refuse any health care you deem unnecessary.”153
2. The Pace “Study”
In May 2011, the Pace Environmental Law Review published an article with no
apparent relationship to environmental law: Unanswered Questions from the Vaccine Injury
Compensation Program: A Review of Compensated Cases of Vaccine-Induced Brain Injury (“Pace
study”).154 The authors reviewed all cases from the Vaccine Injury Compensation
Program (“VICP”) of the U.S. Court of Federal Claim that resulted in a compensatory
award, either by judgment or settlement.155 To identify court awards for vaccine-caused
autism, the authors and their research assistants searched for evidence that the
compensated child suffered “autism or autism-like symptoms.”156 To identify settlement
awards granted for vaccine-caused autism, they conducted telephone interviews of the
families, asking an adult in the household whether the child who received the award had
“autism” or “autism-like symptoms.”157 The authors found eighty-three cases of
“confirmed autism” among the 2,621 compensated vaccine injury claims.158 The authors
concluded that “autism is often associated with vaccine-induced brain damage.”159 At a
news conference conducted in front of the U.S. Court of Federal Claims in Washington,
D.C., the lead author, Mary Holland, stated, “[w]e think this is the tip of the iceberg.”160
Although not disclosed in the article’s authors’ footnote, all three authors sit on
the board of an organization that alleges a link between vaccines and autism.161
2011, 11:33 AM), http://www.wnd.com/index.php?fa=PAGE.view&pageId=364073. 153 Id. 154 Mary Holland et al., Unanswered Questions from the Vaccine Injury Compensation Program: A Review of
Compensated Cases of Vaccine-Induced Brain Injury, 28 PACE ENVTL. L. REV. 480, 482 (2011). 155 Id. at 480-83. For an explanation of the VICP, see supra notes 22-27 and accompanying text. 156 Holland et al., supra note 154, at 503. The research assistants were Pace Law School students.
Id. 157 Id. at 512-13 (discussing settled cases procedure). 158 Id. at 522, 527. Twenty-one of them were decided cases and sixty-two were settled cases. Id.
at 504, 512. 159 Id. at 531. 160 83 Cases of Autism Associated with Childhood Vaccine Just “Tip of the Iceberg”, HEALTH IMPACT
NEWS (May 10, 2011), http://healthimpactnews.com/2011/83-cases-of-autism-associated-with-
childhood-vaccine-just-tip-of-the-iceberg/. 161 Holland et al., supra note 154, at 408 n.a1. All three are board members of the Elizabeth Birt
Center for Autism Law and Advocacy. Board Members, ELIZABETH BIRT CENTER FOR AUTISM
LAW AND ADVOCACY, http://www.ebcala.org/about/board-members (last visited Jan. 31, 2012).
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Moreover, prior to the article’s publication, two of the authors had publicly rejected the
GMC’s ethics findings and had professed steadfast support for Wakefield and his work.
Mary Holland, for example, wrote a chapter entitled Who is Doctor Andrew Wakefield? that
appeared in the book Vaccine Epidemic.162 Wakefield, she wrote, is a “human rights
dissident” “who should be compared with Nelson Mandela.163 She added that the GMC
hearings were but the modern equivalent of the traveling medicine shows of yore,
engineered to punish Wakefield “for his temerity to caution the public about vaccine
risks and to urge them to use their own judgment.”164
The front page of that organization’s website features a link entitled, “FOX News: Law School
Links Autism, Vaccines in Report,” that sends to visitor to an archived broadcast of Fox News in
which one of the authors speaks about “the link between vaccines and autism.” News Video: Law
School Links Autism, Vaccines in Report, ELIZABETH BIRT CENTER FOR AUTISM LAW AND
ADVOCACY (May 10, 2011), http://www.ebcala.org/areas-of-law/vaccine-law/law-school-links-
autism-vaccines-in-report. Mary Holland is also a board member of the Center for Personal
Rights and the Coalition for Vaccine Safety. The Board, CENTER FOR PERSONAL RIGHTS,
http://www.centerforpersonalrights.org/index.php?option=com_content&view=article&id=5&
Itemid=66 (last visited Jan. 31, 2012). The organization is dedicated to “individual vaccination
choice, parental consent to vaccination for children, and freedom to make health care decisions
for ourselves and our families.” Id. 162 Mary Holland, Who is Doctor Andrew Wakefield?, in VACCINE EPIDEMIC: HOW CORPORATE
GREED, BIASED SCIENCE, AND COERCIVE GOVERNMENT THREATEN OUR HUMAN RIGHTS,
OUR HEALTH, AND OUR CHILDREN 223 (Louise Kuo Habakus & Mary Holland eds., 2011),
available at http://vaccineepidemic.com/images/vech25.pdf. 163 Id. at 229.
Dr. Wakefield has joined in a long, honorable tradition of dissidents in science
and human rights. The world has benefitted profoundly from other
courageous dissidents in science—Galileo, who argued that the sun is the
center of the universe; Semmelweis, who reasoned that doctors must wash
their hands to prevent transmission of infection . . . . In due course, the world
has paid tribute to human rights dissidents, as well—Nelson Mandela moved
from prison in South Africa under apartheid to become its most beloved
President; . . . . Before long, the world will likely recognize that it was Dr.
Wakefield, not his detractors, who stood up for the practice of medicine and
the pursuit of science.
Id. 164 Id. at 228.
Dr. Wakefield was, and remains, a dissident from medical orthodoxy. The
medical establishment subjected him to a modern-day medical show trial for
his dissent. Dr. Wakefield’s research raised fundamental doubts about the
safety of vaccines and the etiology of autism. Dr. Wakefield was punished for
his temerity to caution the public about vaccine risks and to urge them to use
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Co-author Louis Conte was more emphatic in his defense of Wakefield.
Nothing, he stated in an interview on CNN following the GMC’s findings, could shake
his beliefs about the link between vaccines and autism:
Well, I personally feel that vaccines are implicated in the increase in
autism. And frankly, the [criticism of] Dr. Wakefield’s study doesn’t
really alter my beliefs one way or the other. Parents who were
observing their children regressing into autism after vaccination before
Dr. Wakefield came on the scene. So, whatever occurs with his study is
not necessarily anything that influences my opinions on the matter.165
Conte had also signed the “We Support Doctor Andrew Wakefield” petition by
which he declared Wakefield “a man of honesty [and] integrity” whose “research is
rigorous, replicated, biologically valid, clinically evidenced, corroborated by published,
peer-reviewed research.”166
The very design of the Pace study was also compromised. There were no health
care professionals or epidemiologists involved in study design, evaluation of the records,
training of the law students who did the research, or interpretation of results.167
Moreover, those results prove little. The authors report that they discovered twenty-one
cases among the court decisions with “language that strongly suggests autistic
features.”168 But, of those twenty-one, five do not do not refer to the compensated
child as having “autism,” “autistic” tendencies or behavior, or “PDD.”169 In many of
their own judgment. Dr. Wakefield was punished for upholding vaccination choice.
Id. (emphasis in original). In the traveling medicine shows of the nineteenth century, those selling
patent “medicines” attracted customers by presenting their wares in as entertaining a fashion as
possible. See Dr. Wilson’s Memory Elixir: Old-Time Traveling Medicine Show, DR. WILSON’S MEMORY
ELIXIR MEDICINE SHOW, http://www.memoryelixir.com/history.html (last visited Jan. 31,
2012). 165 CNN NEWSROOM, supra note 37. 166 WE SUPPORT DR. ANDREW WAKEFIELD, http://www.wesupportandywakefield.com/ (last
visited Jan. 31, 2012). 167 Holland et al., supra note 154, at 503-04. 168 Id. at 504. The authors and the law students “created a database of VICP published decisions
that used relevant terms related to autism.” Id. The article, however, did not list what the
“relevant terms” were. See id. 169 See Holland et al., supra note 154 at 505-510 (cases 1, 5, 8, 9 and 14). A diagnosis of autism
requires findings of findings of “qualitative impairment in social interaction,” “qualitative
impairments in communication,” and “restricted repetitive and stereotyped patterns of behavior,
interests and activities.” DSM-IV, supra note 57, at 70-71 (Diagnostic Criteria for 299.00 Autistic
Disorder); see infra notes 170-178 and accompanying text. The information that the authors
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the other cases, the authors present language taken from a court summary of the
claimants’ arguments. For example, regarding Case 2, the authors cite the following as
evidence that the claimant was autistic: “Petitioners further maintain that the injuries
resulted in . . . moderate autistic characteristics.”170 Similarly, regarding Case 17, the
authors assert that the claimants “allege Sarah developed autism. . .”171
Purporting to show a case possibly compensating autism, the authors also cite a
case of a girl with Rett’s syndrome, which is genetically determined and could not be
caused by vaccines.172 Another case was of a boy with tuberous sclerosis, another
genetic disorder that also could not be caused by vaccines.173 Most of the remaining
cases received the diagnosis of “autism or “autism-like” symptoms from the authors and
the law students reviewing the records, none of whom received training from mental
health professionals.174 Consider this case in which the researchers identified “autism-
like” symptoms:
Jennifer is a severely mentally retarded individual with hyperactive and
destructive behaviors . . . Her social functioning is extremely
inappropriate: she is belligerent and sometimes aggressive; . . . she . . .
practices self stimulating behavior; and she repeatedly bites her hand . .
. She presents a danger to herself and to family members.175
The current iteration of the Diagnostic and Statistical Manual of Mental Disorders,
DSM-IV, requires for a diagnosis of autism findings of “qualitative impairment in social
interaction,” “qualitative impairments in communication,” and “restricted repetitive and
stereotyped patterns of behavior, interests and activities.”176 The quoted language does
not mention communication impairment. Moreover, autistic social impairment involves
present about cases 1, 5, 8, and 14 contain no such findings. 170 Id. at 505. 171 Id. at 509. 172 See id. at 507 (case 9). See generally Rett syndrome, PUBMED HEALTH, http://www.ncbi.nlm.nih.
gov/pubmedhealth/PMH0002503/ (last reviewed Nov. 12, 2010) (“Rett syndrome occurs almost
exclusively in girls and may be misdiagnosed as autism or cerebral palsy. Studies have linked
many Rett syndrome cases to a defect in the methl-CpG-binding protein 2 (MeCP2) gene. This
gene is on the X chromosome.”). 173 See Holland et al., supra note 154, at 505-10 (case 13). See generally Tuberous Sclerosis, PUBMED
HEALTH, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001791/ (last reviewed Sept. 10,
2010) (“Tuberous sclerosis is inherited. Changes (mutations) in two genes, TSC1 and TSC2, are
responsible for most cases of the condition.”). 174 See Holland et al., supra note 154, at 504-11. 175 See id. at 504-12 (case 5). 176 DSM-IV, supra note 57, at 70-71 (Diagnostic Criteria for 299.00 Autistic Disorder).
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limitations in nonverbal behaviors “such as eye-to-eye gaze, facial expression, body
posture,” “failure to develop peer relationships,” and “lack of social or emotional
reciprocity,” such as not engaging in social play or games.177 This subject’s only
apparent social impairment is that she is “belligerent and sometimes aggressive.”178
The authors’ presentations regarding settled cases contain similar inaccuracies.
Seven of the identified claimants received their diagnoses from “[t]hird party medical,
educational or court records confirming autistic disorder.”179 In none of these cases did
the court find that the vaccine caused the autism or autism-like symptoms.180 Indeed, as
in the following quoted language, in several of the cases, the authors quote language
indicating that the diagnosing physician explicitly concluded that the vaccine at issue did
not cause the autism:
[R]espondent’s report . . . suggests vaguely . . . that Kenny’s problems
‘can be attributed in part to other causes such as a family history of
epilepsy, autism and tonsillar hypotrophy.’ . . . Dr. Spiro did not even
purport to know what did cause Kenny’s seizure disorder, his basic
point was that in his view the DPT did not cause it.181
In the other examples, the court found the symptoms “not related” to, “totally
unrelated” to, and “irrelevant” to the award granted.182 Yet, the authors cite these
examples as evidence of a link between vaccines and autism.
In conducting the study for the law review article, the authors also violated a
basic tenet of research ethics. Research involving human subjects conducted at an
institution that receives federal financial support must be approved by an institutional
review board (“IRB”).183 Research with human subjects occurs when researchers obtain
177 Id. 178 Holland et al., supra note 154, at 504 (case 5). 179 Id. at 515-21. 180 See Holland et al., supra note 154, at 515-21. 181 Id. at 505 (case 4). 182 Id. at 506-509 (cases 7, 12, and 16). 183 45 C.F.R § 46.101(a) (2011). The IRB regulations appear in 45 C.F.R. § 46.101-505 (2011) and
are “[o]ften referred to as the ‘Common Rule.’” Office for Human Research Protections (OHRP), U.S.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, http://www.hhs.gov/ohrp/policy/
common.html (last visited Jan. 31, 2012). The Common Rule has been adopted by the
Department of Agriculture, Department of Energy, National Aeronautics and Space
Administration, Department of Commerce, Consumer Product Safety Commission, International
Development Cooperation Agency, Agency for International Development, Department of
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“[d]ata through intervention or interaction with the individual” or obtain “[i]dentifiable
private information” about an individual.184 The authors conducted human research
when they obtained information about settled cases by telephoning the homes of the
claimants and speaking with parents or “caregivers” and compiling data that included
parent and guardian names and occupations and the child’s age and living situation.185
Pace University, which sponsored the research, receives federal funds and maintains an
IRB.186 The authors, however, did not, however, obtain permission from the IRB to
conduct their research.187
Finally, the study, even accepting its results, does not offer evidence to support
its conclusion that “autism is often associated with vaccine-induced brain damage.”188
The eighty-three cases that the authors identified comprise 3.7 percent of the 2,621
compensated vaccine injury claims.189 The authors did not identify these 3.7 percent by
in-person diagnosis by mental health care professionals, but relied on their own abilities
and those of the law students that assisted. The results, then, might be akin to the
screening conducted by teachers and parents in other studies.190
Housing and Urban Development, Department of Justice, Department of Defense, Department
of Education, Department of Veterans Affairs, Environmental Protection Agency, National
Science Foundation, and Department of Transportation. Id. The regulations mandate IRB
approval of human subject research that is “conducted, supported or otherwise subject to
regulation by any federal department or agency which takes appropriate administrative action to
make the policy applicable to such research.” 45 C.F.R. § 46.101(a). As a result, research
involving human subjects conducted by any institution that receives federal financial support
must be approved by an appropriate IRB. See David A. Hyman, Institutional Review Boards: Is This
the Least Worst We Can Do?, 101 NW. U. L. REV. 749, 750-52 (2007). 184 45 C.F.R. § 46.102(f) (2011). 185 See Holland et al., supra note 154, at 524-26 (questioning family caregivers about the current
condition of the child and how the vaccine injury impacted his or her family). 186 See Pace University Institutional Review Board (IRB), PACE UNIVERSITY IN THE CITY OF NEW
YORK AND WESTCHESTER COUNTY, http://www.pace.edu/provost/information-faculty-0/pace-
university-institutional-review-board-irb-0 (last visited Jan. 7, 2012) (explaining that the IRB was
created to protect both the rights and privacy of human research participants in any research
conducted by the Pace University community, including those outside individuals who wish to
conduct research using the Pace University facilities). 187 See Unanswered Questions from Pace law Journal Study: Ethical Standards for Research on Human
Subjects, AUTISM NEWS BEAT (May 20, 2011), http://autism-news-beat.com/archives/1671
(explaining that the IRB, established to protect the rights and interests of human subjects, was
not consulted prior to conducting research and that this requirement is a well established ethical
standard in the scientific community). 188 See Holland et al., supra note 154, at 531. 189 See id. at 527. 190 See, e.g., Kim et al., supra note 88, at 907.
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Consider, for example, the recent study of the population of seven to twelve
year olds in a South Korean community.191 Parents and teachers screened children by
use of an “Autism Spectrum Screening Questionnaire”192 similar to the questionnaire
that the Pace study authors employed.193 The screening diagnosed seven percent of the
population with autism spectrum disorders.194
The South Korean full population study found twice the screened prevalence
that the Pace study authors found among the compensated cases. Certainly, the Pace
authors are wrong in claiming to have found that autism is correlated with vaccine.
Indeed, if the study proved anything it was that the VICP compensated pool does not
exhibit higher rates of autism than does the general public. This did not, however, stop
them from claiming to have viewed but the tip of an iceberg of autism cases among the
vaccinated and calling for a Congressional investigation.195 As Louis Conte, one of the
co-authors, had earlier observed, research discoveries are “not anything that influences
[their] opinions on the matter” of the link between vaccines and autism.196
III. Cultural Cognition, Science, and Superstition and Enthusiasm
A. The Culture of “The Vaccine Liberation Army”197
How might one parent transfer “two lollipops and a wet rag and spit” across the
country to another parent who has purchased them?198 “Tuck [them] inside a zip lock
baggy and then put the baggy in the envelope :) Don’t put anything identifying it as
191 See id. at 905. In this study, parents and teachers conducted the autism screening. Id. 192 Id. at 905. Stage 1 used systematic multi-informant screening with the Autism Spectrum
Screening Questionnaire (“ASSQ”), a 27-item questionnaire assessing social interactions,
communication problems, and restricted and repetitive behaviors. Id. All parents were asked to
complete the ASSQ; additionally, teachers were asked to complete the ASSQ for all children who
had any ASD characteristics, as described in educational sessions led by the research team. Id. 193 See Holland et al., supra note 154, at 514. The Pace study used “The Social Communication
Questionnaire,” (“SCQ”) which is a screening measure very similar to the ASSQ used in the
South Korean study. Id. 194 Kim et al., supra note 88, at 3. Seven percent “screened positive”. Id. 195 See Holland et al., supra note 154, at 530; 83 Cases of Autism Associated with Childhood Vaccine Just
“Tip of the Iceberg,” HEALTH IMPACT NEWS, http://healthimpactnews.com/2011/83-cases-of-
autism-associated-with-childhood-vaccine-just-tip-of-the-iceberg/ (last visited Nov. 29, 2011). 196 CNN NEWSROOM, supra note 37. 197 The Vaccine Liberation Army, http://vaccineliberationarmy.com/ (last visited Jan. 31, 2011). 198 Morgan Loew, CBS 5 Investigates Mail Order Diseases, http://www.kpho.com/story/15896021/
cbs-5-investigates-mail-order-diseases (last updated Nov. 14, 2011, 12:45 PM).
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pox.”199 The asking price for such a parcel is fifty dollars.200
The “pox” refers to the chickenpox, which is caused by the varicella-zoster
virus.201 Parents opposed to vaccinating their children arrange natural vaccination “pox
parties” with a child who is suffering from the ailment.202 If a child with the illness
cannot be found, other parents will mail a “pox package” containing lollipops and other
items coated in the saliva of a pox-inflicted child.203
Some parents oppose the chickenpox vaccine merely because it is one vaccine
too many and for an ailment that rarely presents a serious threat to health.204 But, for
many parents it is but one component of a “war” against a “vaccine culture.”205
Consider, for example, the raison d’être of the Facebook group called Proud Parents of
Unvaccinated Children: “For people, parents and family and friends of unvaccinated
Children and adults! A place for Parents of vaccinated children to learn the truth, reverse
and prevent future damage from vaccines!”206 The group’s founder, Robert Schecter,
contends that public health officials who urge the vaccination of children are but
“paternalistic do-gooders” who “get satisfaction out of what they [falsely] believe to be
helping people.”207
Schecter has stated his views in more militant terms elsewhere. He also runs the
Facebook page for another anti-vaccine group, The Vaccine Machine.208 That group states
199 Id. 200 Erik Schelzig, Prosecutor to parents: Mailing chickenpox illegal, THE WASHINGTON TIMES (Nov. 6,
2011) http://www.washingtontimes.com/news/2011/nov/6/prosecutor-to-parents-mailing-chic
kenpox-is-illega/. “One of the Facebook postings from Wendy Werkit of Nashville offered a
‘fresh batch of pox in Nashville shipping of suckers, spit and Q-tips available tomorrow 50
dollars via PayPal.’” Id. Sending diseased substances through the mails is a violation of federal
law. Id. 201 Loew, supra note 198; see also Chickenpox, Varicella; Chicken pox, PUBMED HEALTH,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002559/ (last visited Jan. 31, 2012). 202 Schelzig, supra note 200. 203 Id. 204 PUBMED HEALTH, supra note 201. Chickenpox can lead to other, more serious ailments such
as encephalitis, Reye’s syndrome, Myocarditis and Pneumonia. Id. 205 See STD Shot Stuck in Center of U.S. Culture War, MSNBC.COM, http://www.msnbc.msn.
com/id/18769275/ns/health-cancer/t/std-shot-stuck-center-us-culture-war/#.TtKEmByfvvJ
(last updated May 20, 2007, 7:23 PM). 206 Proud Parents of Unvaccinated Children, FACEBOOK, http://www.facebook.com/pages/Proud-
Parents-Of-Unvaccinated-Children/302370145808 (last visited Jan. 4, 2012). 207 See Brian Wheeler, Why Do Parents Buy Chickenpox Lollies?, BBC NEWS MAGAZINE,
http://www.bbc.co.uk/news/magazine-15647434 (last updated Nov. 10, 2011 09:05 ET). 208 The Vaccine Machine, FACEBOOK, http://www.facebook.com/TheVaccineMachine?sk=info,
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its agenda in starker terms: “The Vaccine Machine refers to the vested interests in
medicine, industry and government dedicated to vaccinating our children by any means
necessary. We stand in opposition to that machine.”209 Schecter’s related website states
as it goal the “[u]nplugging [of] America from the Vaccination Matrix.”210 Vaccine
opponents will accomplish that because, even though the “establishment and their
media dupes have the force of the state behind them . . . it is we who have the
intellectual basis to defend current exemptions and to someday overturn the very idea of
a vaccination mandate from which those exemptions must be sought.”211
In a recent interview on BBC radio, Schecter conceded that a number of
diseases have “disappeared” as a result of vaccines and that they might well return if a
sufficient number of people refuse to be vaccinated.212 True to his libertarian
philosophy, Schecter stated that he owed no “responsibility to other children” who
might contract illnesses because of his refusal to vaccinate his own children.213
Some communities have been able to approach Schecter’s vaccine-free goal.
The schools associated with the Waldorf educational philosophy may provide the best
example. The system was the brainchild of Hungarian philosopher Rudolf Steiner, who
lived from 1861 to 1925.214 The Waldorf/Steiner educational philosophy derived from a
notion of individual rights:
We are convinced that the mainspring of social life and health lies in
the spiritual nature of man. Our complex and difficult civilization
requires a fuller and freer inflow of the basic spiritual impulses. Such
inflow can only take place through the individual human beings who
are born into the world and unfold their faculties within it. Education
in the widest sense of the word must open out the way. True
education, therefore, whether of the child, the adolescent, or the adult,
presupposes the deepest reverence and respect for the freedom of the
human spirit in every individual.215
(last visited Jan. 31, 2012). 209 Id. 210 Id. 211 Id. 212 Up All Night (BBC Radio 5 live broadcast Nov. 11, 2011). 213 Id.; Wheeler, supra note 207 (describing himself as a libertarian). 214 John Paull, Rudolf Steiner and the Oxford Conference: The Birth of Waldorf Education in Britain, 3 EUR.
J. EDUC. STUDIES 53, 53-54 (2011), available at http://orgprints.org/18835/1/Paull2011Oxford
EJES.pdf. 215 Id. at 60.
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That emphasis on individual rights is inconsistent with reliance on vaccination
to escape from disease.216 As a result, Waldorf schools boast a “strong cultural anti-
immunization preference among thought-leaders” in its community.217
Waldorf is the “largest independent school movement in the world,” boasting
over 1,000 schools and 2,000 “early childhood centres” throughout sixty countries.218
The result of its libertarian position on children immunization can be dramatic. The
children at the Waldorf school in the San Francisco Bay area, for example, have an
immunization rate of 23 percent compared with the 97 in the surrounding county.219
Children from that school may, as one observer has worried, “emerge from their school
to infect infants, immunocompromised adults, and people whose vaccinations didn’t
take or have waned, with potentially fatal diseases.”220 But, those like The Vaccine
Machine’s Robert Schecter will be untroubled because they own no “responsibility to
other children.”221
The anti-vaccine community has begun to join ranks. The Vaccine Machine
recently announced that it has “just begun teaming up with the good folks” at Operation
Rescue.222 Celebrity Jenny McCarthy, who founded Operation Rescue, has characterized the
216 OPENWALDORF, Health and Safety, http://www.openwaldorf.com/health.html (last visited Jan.
31, 2012).
We also understand why, among the best minds of our period, there exists a
kind of aversion to vaccination . . . This would constitute the indispensable
counterpart without which we are performing only half our task. We are
merely accomplishing something to which the person in question will himself
have to produce a counterpart in a later incarnation. If we destroy the
susceptibility to smallpox, we are concentrating only on the external side of
karmic activity.
Id. (quoting Rudolf Steiner, Lecture: Karma of the Higher Beings, RUDOLF STEINER ARCHIVE,
http://wn.rsarchive.org/Lectures/ManfKarma/19100525p01.html (last visited Jan. 31, 2012)). 217 OPEN WALDORF, supra note 216, Health and Safety, http://www.openwaldorf.com/health.html
(last visited Jan. 6, 2012) (setting forth Waldorf’s approach to health and safety). 218 Paull, supra note 214, at 63 (citations omitted). 219 See Megan McArdle, A Shocking Chart on Vaccination, THE ATLANTIC (Oct. 31, 2011),
http://www.theatlantic.com/life/archive/2011/10/a-shocking-chart-on-vaccination/247651/. 220 Id. 221 See Robert Schecter, Dr. Wendy’s Washington, THE VACCINE MACHINE (May 17, 2011),
http://www.thevaccinemachine.com/2011/05/dr-wendys-washington.html (last visited Jan. 6,
2012) (stating that parents have the responsibility to protect their children and not the children of
others). 222 See Robert Schecter, The Vaccine Machine @ Generation Rescue, THE VACCINE MACHINE,
http://www.thevaccinemachine.com/p/vaccine-machine-generation-rescue.html (last visited Jan.
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GMC’s investigation into Andrew Wakefield’s MMR-autism study as “dubious . . .
allegations.”223 Moreover, to this day she maintains that “Andy Wakefield is a symbol of
strength and conviction.”224
B. The Cultural Dimensions of the Controversy
1. Cultural Cognition
The debate concerning the link between the MMR vaccine and autism is not
unique in presenting a controversy in which public opinion has not followed scientific
consensus. Debates concerning climate change and the safety of nuclear power plants,
for example, “have featured intense political contestation over empirical issues on which
technical experts largely agree.”225 In recent years, Dan Kahan and his co-authors have
explored the utility of the theory of the cultural cognition of risk in explaining the
disconnect between scientific and public opinion.226
The theory of cultural cognition “refers to the tendency of individuals to fit
their perceptions of risk and related factual beliefs to their shared moral evaluations of
putatively dangerous activities.”227 The theory posits that people are psychologically
predisposed to believe what, given their culture, they deem honorable and to reject what
they deem to be dishonorable.228
The theory offers a number of postulates to explain why psychological
31, 2012) (announcing that Vaccine Machine and Generation Rescue are teaming up to bring
parents vaccine-related information). 223 McCarthy, supra note 149. 224 WAKEFIELD, supra note 151. 225 Dan Kahan et al., Cultural Cognition of Scientific Consensus 1 (J. Risk Research, Yale Law School,
Public Law Working Paper No. 205, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=1549444. 226 See, e.g., id. (recognizing the political sphere’s impact on the public’s opinion of climate
change). See generally Dan M. Kahan, Cultural Cognition as a Conception of the Cultural Theory of Risk
(Handbook of Risk Theory, Yale Law School, Public Law Working Paper No. 222, 2008) available
at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1123807 (exploring the theory of
cultural cognition in which individuals’ feelings on particular societal dangers reflect and reinforce
their prior commitment to other societal norms); Dan Kahan & Donald Braman, More Statistics,
Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. PA. L. REV. 1291 (2003)
(recognizing individuals’ opinions on gun control are largely derived from their cultural
worldviews). 227 Kahan et al., supra note 225, at 2. 228 Id.
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predisposition might impact the perception of scientific evidence. First, people might
simply selectively recall opinions supportive of their world views and repress contrary
opinions.229 Similarly, they might “impute expert knowledge and trustworthiness” to
messengers whom they perceive as sharing their views.230 Finally, predisposition might
affect research.231 Certainly, we can imagine people combing the internet and choosing
to land only on sources that support conclusions that they have already deemed
acceptable. As a result, the authors posit the theory, “scientific consensus cannot be
expected to counteract the polarizing effects of cultural cognition because apprehension
of it will necessarily occur through the same social psychological mechanisms that shape
individuals’ perceptions of every other manner of fact.”232
In Cultural Cognition of Scientific Consensus, Dan Kahan, Hank Jenkins-Smith, and
Donald Braman tested this hypothesis in a national sample of 1,500 adults.233 The
authors first assessed the subjects’ cultural worldviews in two categories. The hierarchy-
egalitarianism measure, or “hierarchy” scale, gauged attitudes about whether society
should attempt to remedy “social orderings” based on gender, race, and class.234 The
individualism-communitarianism measure, or “individualism” scale, assessed attitudes
about whether society should be structured to minimize interference with individual
liberties or to maximize the collective welfare.235 The authors then compared worldview
measures with the subjects’ opinions on whether “most expert scientists agree” or
disagree with statements about climate change, the safety of nuclear power, and gun
control.236
229 Id. at 4. 230 Id. 231 Id. at 5. 232 Id. at 5-6. 233 Kahan et al., supra note 225, at 6. 234 Id. at 7. The study asked participants to indicate on a six-point scale the extent to which they
agreed or disagreed with statements such as, “Society as a whole has become too soft and
feminine” and “We need to dramatically reduce inequalities between the rich and the poor,
whites and people of color, and men and women.” Id. at 7, 37-38. 235 Id. at 7. To assess placement on the “individualism” scale, participants were asked to indicate
on a six-point scale the extent to which they agreed or disagreed with statements such as, “The
government interferes far too much in our everyday lives” and “The government should do more
to advance society’s goals, even if that means limiting the freedom and choices of individuals.”
Id. 236 Id. at 7-8. Subjects were asked to evaluate whether experts are in agreement that “global
temperatures are increasing,” “human activity is causing global warming,” “radioactive wastes
from nuclear power can be safely disposed of in deep underground storage facilities,” and
“permitting adults without criminal records or histories of mental illness to carry concealed
handguns in public decreases violent crime.” Id. at 8.
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The study confirmed the hypothesis that people of different cultural outlooks
reached different conclusions about scientific consensus.237 Those with hierarchical and
individualistic perspectives disagreed with those with egalitarian and communitarian
perspectives about both scientific opinion and about the qualifications of fictional
“experts.” 238 “[B]ecause of culturally biased information search and culturally biased
assimilation, [a person] is likely to attend to the information in a way that reinforces her
prior beliefs and affective orientation.”239
Kahan and some colleagues also tested the cultural cognition thesis in a study of
attitudes about mandating that teenage girls receive the vaccine for human-
papillomavirus (“HPV”), the sexually transmitted virus that causes cervical cancer.240 In
2006, the national Advisory Committee on Immunization Practices (“ACIP”)
recommended routine vaccination for girls between ages of eleven and twelve.241 The
prospect of including the HPV vaccine among those required to attend public schools
has generated controversy.242 Proponents have argued that a mandatory HPV vaccine
will save many lives.243 Opponents have countered with reference to concerns about the
237 Id. at 27. 238 Id. at 27. 239 Kahan et al., supra note 225, at 29 (internal citations omitted). 240 Dan M. Kahan et al., Who Fears the HPV Vaccine, Who Doesn’t, and Why? An Experimental Study
of the Mechanisms of Cultural Cognition, 34 LAW & HUMAN BEHAVIOR 501, 513 (2010), available at
http://ssrn.com/abstract=1160654 [hereinafter Kahan et al. HPV]; see also HPV Vaccine
Information for Young Women - Fact Sheet, CENTERS FOR DISEASE CONTROL AND PREVENTION,
http://www.cdc.gov/std/hpv/STDFact-HPV-vaccine-young-women.htm, (last updated Sept.
15, 2011) (discussing the pros and cons of the HPV vaccine and why it may be important for
women to be vaccinated). 241 HPV Vaccine: State Legislation and Statutes, NCSL, http://www.ncsl.org/default.aspx?tabid=
14381 (last updated Jan. 2012). 242 See id. See generally Trip Gabriel, In Republican Race, a Heated Battle Over the HPV Vaccine, N.Y.
TIMES, Sept. 13, 2011 at A16, available at http://www.nytimes.com/2011/09/14/us/politics/r
epublican-candidates-battle-over-hpv-vaccine.html. The governor of Texas, Rick Perry, came
under fire for a regulation in Texas requiring that the HPV vaccine be administered to adolescent
women. Id. The regulation, which was signed into law in 2007 by Perry, was controversial and
some speculated that the requirement was simply another case of a political favor to Perry’s
former chief of staff who worked for the pharmaceutical manufacturer Merck. Id. 243 NCSL, supra note 241. See also Cheryl A. Vamos, Robert J. McDermott, & Ellen M. Daley, The
HPV Vaccine: Framing the Arguments FOR and AGAINST Mandatory Vaccination of All Middle School
Girls, 78 J. SCHOOL HEALTH 302, 305-06 (2008) available at http://onlinelibrary.wiley.com/doi/
10.1111/j.1746-1561.2008.00306.x/full (arguing that the HPV vaccine is 100 percent effective in
preventing four of the HPV strains that are known to cause 70 percent of all cervical cancers).
Proponents of the vaccine also conclude that requiring the vaccine can save health care dollars
that would be subsequently dedicated to testing for and treating HPV once contracted. See id. at
306.
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vaccine’s safety and “moral objections related to a vaccine mandate for a sexually
transmitted disease.”244
The authors hypothesized that those embracing hierarchical and individualistic
worldviews would tend to oppose mandatory HPV vaccination both because the vaccine
might encourage sexual behavior and because a mandate would preclude individual
choice.245 Similarly, those embracing egalitarian and communitarian worldviews would
favor a mandate as expressing tolerance for a non-traditional norm and because it would
support the common good.246
The authors again first assessed the subjects’ cultural worldviews on the
hierarchy and individualism scales.247 They then assessed subjects’ views on mandatory
HPV vaccine by asking them to agree or disagree with assertions like, “It is important to
devise public health policies to reduce the spread of HPV,” and, “Universal vaccination
of girls for HPV will lead girls to become more sexually active.”248 In addition, the
authors identified attitudes toward fictional scientists offering opening opinions on the
risks and benefits of the vaccine.249
The results again revealed a relationship between worldview and beliefs about
the vaccine and the messengers conveying information about it:
[P]olarization grows where culturally diverse subjects see the argument
they are disposed to accept being made by the advocate whose values
they share, and the argument they are predisposed to reject being made
by the advocate whose values they repudiate. In contrast, when
subjects see the argument they are disposed to reject being made by the
244 NCSL, supra note 241. In 2007, the governor of Texas issued an executive order mandating
vaccination, but the Texas legislature overrode the order. Id. See also Katrina Trinko, How Many
States Have Mandated HPV Vaccines?, NATIONAL REV. (Sep. 16, 2011, 4:26 PM),
http://www.nationalreview.com/corner/277496/how-many-states-have-mandated-hpv-
vaccines-katrina-trinko. To date, only two places have mandated the vaccine: Virginia and
Washington, DC. Id. 245 Kahan et al. HPV, supra note 240, at 504. 246 Id. 247 Id. at 505. The two scales were “Hierarchy-Egalitarianism” (“hierarchy”), which consisted of
12 items, and “Individualism-Communitarianism” (“individualism”), which consisted 18 items,
and both scales assess worldviews based on responses of ‘strongly disagree,’ ‘disagree,’ ‘agree,’
and ‘strongly agree’ to statements. Id. 248 See Kahan et al. HPV, supra note 240, at 505. The order in which the statements were
presented was random. Id. 249 See id. at 505-07.
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advocate whose values they share, and the argument they are
predisposed to accept being made by the advocate whose values they
repudiate, polarization shrinks to the point of disappearing.250
In sum, the results confirmed “that disagreements about the risks and benefits
of HPV vaccination are shaped by cultural values, which exert their influence through
the biased assimilation of information and through attributions of information-source
credibility.”251
2. Anti-Vaccine Culture and Views on the Causes of Autism and Safety of the MMR
Vaccine
The cultural cognition literature provides a framework by which to evaluate the
MMR vaccine critics’ refusal to accept scientific consensus. Kahan and his colleagues
have demonstrated that worldview predicts judgments about the credibility of scientific
information.252 We know the judgment of the Wakefield faithful that, contrary to
scientific consensus, the MMR vaccine causes autism.253 Given this, if we can identify
the worldviews of the Wakefield faithful, we may be able to offer an explanation.
Recall that Kahan and his colleagues discerned position on the hierarchy scale
by assessing whether subjects preferred society stratified according to immutable,
individual characteristic such as “gender, ethnicity, and class.”254 Among others, the
authors posed this statement to study subjects: “A lot of problems in our society today
come from the decline in the traditional family, where the man works and the woman
stays home.”255 Agreement signifies a hierarchical worldview.256
The anti-vaccine community embraces a hierarchical worldview, and especially
the concept of “traditional family values,”257 which emphasize gender-based, family
250 Id. at 511 (emphasis in original). 251 Id. at 512. 252 See supra notes 225-251 and accompanying text (analyzing and supporting the hypothesis that
people of different cultural outlooks reach different conclusions about scientific consensus). 253 See supra notes 128-153 and accompanying text (describing Wakefield’s followers). 254 Kahan et al., supra note 225, at 8. 255 Id. at 11. 256 Id. 257 See, e.g., Rachel Chen, HPV Vaccination: Understanding the Controversy, 6 YALE J.L. & MED 26, 26-
27, (2010) available at http://www.yalemedlaw.com/2010/02/hpv-vaccination-understanding-the-
controversy/. The advocacy group, Focus on the Family, opposes mandatory HPV vaccination
because “such a requirement constitutes an attempt by the secular state to force a child to
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roles.258 Consider, for example, the counsel of actor Chuck Norris, one of the leaders of
“a celebrity-driven campaign against vaccines” that legitimized Wakefield’s discredited
views and “kept them in the public eye” in the U.S.259 Norris has argued that the decline
of traditional family values is one of the major problems contributing to America’s
“downward spiral.”260 As evidence of the diminution of these values, Norris observes
that nearly two-thirds of children in the country under the age of five “are in some form
of day care every week, living life apart from their parents.” 261 Women’s forsaking their
traditional roles has also contributed to America’s moral decline: “Nearly half of
America’s labor force is women and of course many of these women are mothers.”262
The cultural cognition theory’s second scale, the individualism assessment,
gauges attitudes about individual rights versus governmental obligations. Kahan and his
co-authors determined this measure by posing competing statements to subjects: “The
government interferes far too much in our everyday lives” and “the government should
do more to advance society’s goals, even if that means limiting the freedom and choices
of individuals.”263 Agreement with the first statement signifies an individualistic
worldview while agreement with the second signifies a communitarian view.264
The objection to governmental intervention in individual choice lies at the heart
of the vaccine opposition. These parents dispute “what they see as the dictatorial nature
of the US vaccine programme, which, they argue, leaves them little choice over what is
being put into their children’s bodies.”265 Advocates of this worldview find particularly
troubling any communitarian notion that values the group over the rights of the
individual. Indeed, they find “Phrases like, ‘needs of the population at large,’ ‘cost-
benefits analysis,’ and ‘all that matters is that its victims number significantly fewer than
those of the diseases vaccinations are designed to prevent’ . . . really frightening.”266
undergo an intervention that may be irreconcilable with her family’s religious values and beliefs.”
Id. at 26. 258 See, e.g., Ali Gunes, From Mother-Care to Father-Care: The Split-Up of The Traditional Heterosexual
Family Relationship and Destruction of Patriarchal Man’s Image and Identity in Nick Hornby’s About a Boy,
3 SKASE J. OF LITERARY STUD. 59, 59- 61 (2011), available at http://www.skase.sk/Volumes/
JLS03/pdf_doc/04.pdf (discussing “traditional family values”). 259 Wheeler, supra note 207. 260 CHUCK NORRIS, BLACK BELT PATRIOTISM: HOW TO REAWAKEN AMERICA 21 (2010). 261 Id. 262 Id. 263 Kahan et al., supra note 225, at 7. 264 Id. 265 Wheeler, supra note 207. 266 Anne Dachel, New York Times Reviews The Greater Good Movie Tells Vaccine-Injured Children to
Drop Dead, AGE OF AUTISM, http://www.ageofautism.com/2011/11/new-york-times-reviews-
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Robert Schecter, founder of the Facebook group Proud Parents of Unvaccinated Children and
the website The Vaccine Machine has put this most simply: he believes that he owes no
“responsibility to other children.”267
The cultural cognition thesis would have predicted that the Wakefield Faithful
would find the MMR vaccine troubling. Because they embrace the combination of
hierarchical and individualistic worldviews, these “hierarchical individualists” tend to
“perceive greater risks and smaller benefits” in the vaccine.268 In addition, the Wakefield
faithful’s alarm about the governmental intrusion represented by a mandatory vaccine
would unsurprisingly inspire them to be all the more critical of the vaccine.269
Another variable is at play here. As recognized by the cultural cognition
theorists, people tend to believe “sources with whom they have some ‘in group’
connection, and to deny the same to ‘out group’ information sources.”270 This “cultural
affinity” or “cultural difference” either accentuates or mutes a listener’s response to the
information source.271
Wakefield probably could not be more “in” the anti-vaccine group. He is
“dissident from medical orthodoxy” and had the courage to stand up for his patients,
“the practice of medicine and the pursuit of science.”272 As Jenny McCarthy put it,
“Andy Wakefield is a symbol of strength and conviction that all parents of children with
autism can use to fight for truth and the best lives possible for their kids.”273 He is a
“hero” to those standing with him outside the walls of medical orthodoxy.274
the-greater-good-movie-tells-vaccine-injured-children-to-drop-dead.html (last visited Jan. 31,
2012). 267 Schecter, supra note 221. 268 Kahan et al., supra note 225, at 8, 10 (using the cultural cognition thesis to examine subjects’
views on the HPV vaccine). Cultural worldviews that are based on individualism and hierarchical
values would predispose an individual to see more risks with the vaccine and fewer benefits. Id.
at 8. 269 See id. (hypothesizing that individualism would “dispose individuals to see more risk” with a
mandatory vaccine “because mandatory vaccination intrudes on individual decision-making.”) 270 Id. at 9. Individuals generally assess the strength of an argument based on judgments about
credibility. Id. Qualities of credibility are more readily attributed to sources with which
individuals have an “‘in-group’ connection.” Id. 271 See id. (hypothesizing that the strength of arguments for and against mandatory HPV
vaccinations would vary according to source affinity). 272 See Holland, supra note 31; Kahan et al., supra note 225, at 9. 273 Wakefield, supra note 151, at iv. 274 See, e.g., Our Hero Dr. Andrew Wakefield on the TODAY Show, THE VACCINE LIBERATION ARMY,
http://vaccineliberationarmy.com/our-hero-dr-andrew-wakefield-on-the-today-show-2/
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Wakefield’s critics, as part of the vaccine “establishment” probably could not be
more “out” of the anti-vaccine group.275 Indeed, Wakefield’s supporters characterize his
critics as a component in a “vaccine machine” comprising “pharmaceutical companies,
public health agencies, medical organizations and the government.”276 Those “fountains
of misinformation” conspired to discredit Wakefield.277
The context of the MMR-autism debate provided the setting for a perfect
cultural storm: an “in-group” messenger presenting alarming information to a group of
“hierarchical individualists” who simply could not credit his critics. As one of the
authors of the Pace “study” put it, “Well, I personally feel that vaccines are implicated in
the increase in autism. And frankly, the [criticism of] Dr. Wakefield’s study doesn’t
really alter my beliefs one way or the other.”278
IV. Conclusion
On November 21, 2011, the New York Times conducted an online, “Armchair
Ethicist” discussion of this question: “Is it ethical for pediatricians to refuse routine care
to families that do not immunize their children?279 The editor asked, “Will the whole
thing devolve into yet another online debate on vaccination, and how society should
handle the families . . . who (without medical necessity) skip the shots?”280 She
predicted, “Yes, yes it will.”281
(last visited Jan. 31, 2012) (discussing the website’s support for Dr. Wakefield while also
providing current information and developments concerning Dr. Wakefield and his research). 275 See Holland, supra note 31, at 229. “The medical establishment subjected [Wakefield] to a
modern-day medical show trial for his dissent.” Id. 276 Robert Schecter, FAQs, THE VACCINE MACHINE, http://www.thevaccinemachine.com
/p/faqs.html (last visited Jan. 8, 2012). This quote was a response to a question on the blog
inquiring about the author’s opposition towards vaccines. Id. 277 Media, the Medical Establishment, and Big Pharma start up new round of Andrew Wakefield Bashing,
MEASLES INITIATIVE, http://www.measlesintiative.org/88-media-the-medical-establishment-and
-big-pharma-start-up-new-round-of-andrew-wakefield-bashing.html (last visited Jan. 31, 2012).
“What a combo . . . Drug Companies, Doctors, and the Media. Three fountains of
misinformation that just won’t stop with this 1998 study that struck a nerve.” Id. 278 CNN NEWSROOM, supra note 37. 279 Ariel Kaminer, Armchair Ethicist, Flu Season Edition, N.Y. TIMES (Nov. 21, 2011, 11:04 AM),
http://6thfloor.blogs.nytimes.com/2011/11/21/armchair-ethicist-flu-season-edition/?hp. 280 Karin J. Dell’Antonia, Is It O.K. for Doctors to Turn Away Unvaccinated Kids?, N.Y. TIMES (Nov.
21, 2011, 12:07 PM), http://parenting.blogs.nytimes.com/2011/11/21/is-it-o-k-for-doctors-
turn-away-unvaccinated-kids/. 281 Id.
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The two hundred forty-eight comments posted over four hours replicated in the
written equivalent of time lapse photography the entire spectrum of the vaccine
debate.282 Parents opposed to vaccination wrote of medical coercion,283 parents who
vaccinate their children complained about the non-vaccinators who pose a risk to the
community,284 and pediatricians voiced frustration over the failure to vaccinate
children.285 One comment succinctly summarized the culture gap between those who
do and do not vaccinate their children: “I am a person who does not vaccinate her kids
. . . I wonder how we can get better at coexisting OR we can choose not to be friends
with someone whose values are so diametrically opposed to our own. That’s okay
too.”286
The writer has cause to worry. That the debaters embrace “diametrically
opposed” worldviews does present a barrier to useful discourse. But, in the words of
the cultural cognition scholars, it “does not imply, however, that there is no prospect for
rational public deliberations informed.”287 But, to be effective, “communicators must
attend to the cultural meaning as well as the scientific content of information.”288
The cultural cognition scholars have proposed several methods for attending to
the cultural meaning of communications. First, communicators might employ “identity
affirmation” by which they craft a missive in language that supports the listener’s
cultural identity.289 Vaccine supporters have historically accused the anti-vaccine group
282 Dell’Antonia, supra note 280. The Times allowed comments from 1:00 PM to 5:00 PM. Id. 283 See Kaminer, supra note 279. One commentator opposed to forced vaccinations stated,
“[p]arents should be allowed to make their own health decisions for their children and not be
forced into submitting to whatever passes for the conventional medical wisdom of the day, even
when such conventional wisdom is cloaked in the lofty mantle of ‘public health.’” Id. 284 Id. A commentator concerned about risk to the community stated, “I’d be afraid to send my
kid to a pediatrician who spent a lot of time around kids who hadn’t been immunized. I almost
died from measles as a child. I wouldn’t wish what mothers went through back then during a
measles epidemic on any parent today.” See id. 285 See Kaminer, supra note 279. One physician stated, “While it [sic] exasperating for physicians
to be in this situation—especially since the primary driver for avoiding immunizations was the
fraudulent data published about the link to Autism—we are obliged to provide care.” See id.
Other pediatricians reported that they refuse to serve the unvaccinated: “I am a partner in a
practice in Kansas City, MO that does not allow non-immunizers. We have a strict policy—no
refusers and no alternative schedules. All immunizations must be on-time and per the CDC
schedule.” See id. 286 Dell’Antonia, supra note 280, at 1. 287 Kahan et al.., supra note 225, at 30. 288 See id. at 30. 289 Id.
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of putting their own children at risk and neglecting to consider the public good. Vaccine
supporters might find their message more acceptable if they emphasized that choosing
to be vaccinated liberates one from fear of disease.
Cultural cognition scholars also recommend “pluralistic advocacy” by which
speakers “of diverse values on both sides of the debate” present scientific
information.290 In the vaccine context, finding speakers outside of the “vaccine
machine,” such as parents of children with autism, might be particularly helpful.
Finally, the theorists suggest “narrative framing” that emphasizes the context
that presents an issue before an appropriate moral backdrop.291 Here, references to
impending changes to the U.S. health care system might prove effective. The
governmental participation signaled by the Patient Protection and Affordable Care
Act292 is certainly inconsistent with an individualistic worldview. Indeed, opponents
have characterized the legislation as an affront to personal liberty.293 A vaccine would
assist an individual in maintaining health and avoiding that governmental intrusion.
In order to bring effective communication that closes the culture gap, we might
have to rely on the natural reach of disease to fuse public and scientific consensus. In
England in 1772, the Rev. Edward Massey presented to his congregation a sermon
entitled, “The Dangerous and Sinful Practice of Inoculation.”294 Disease, he contended,
was heaven sent and any attempt to prevent God’s will by vaccination was “a diabolical
operation.”295 Massey represented a well-established tradition religious opposition to
vaccination that spread to the New World, too.296 That opposition finally withered
during Canada’s smallpox outbreak of 1885 when Protestants, who had embraced
vaccination, survived the disease while Catholics, who had avoided the diabolical, did
290 See id. at 31. 291 Id. 292 Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat.119
amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat.
1029. 293 See, e.g., Robert Moffit, Obamacare and the Individual Mandate: Violating Personal Liberty and
Federalism, THE HERITAGE FOUNDATION (Jan. 18, 2011), http://thf_media.s3.amazonaws.com/
2011/pdf/wm3103.pdf. 294 ANDREW D. WHITE, Theological Opposition to Inoculation, Vaccination, and the Use of Anaesthetics, in
A HISTORY OF THE WARFARE OF SCIENCE WITH THEOLOGY IN CHRISTENDOM 339, 339-47 (The
Free Press 1965) (1896), available at http://abob.libs.uga.edu/bobk/whitem10.html. 295 Id. at 339. 296 Id. at 340-41.
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not.297 One can only hope that it will not take a disease outbreak and a differential
survival rate to convince modern day skeptics to embrace vaccination.
297 Id. at 343-44.
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