Pandemics, Populism and the Role of Law in the H1N1 Vaccine Campaign

Abstract:     
The 2009 H1N1 influenza pandemic provided an important test for the laws and policies that have been established to facilitate the rapid development and distribution of pandemic vaccine. These federal and state laws seek to address both supply and demand side challenges to the pandemic vaccine production and dissemination. This Article reviews the use of these legal tools during the 2009 pandemic, looking particularly at the Public Readiness and Emergency Preparedness Act, which insulates vaccine manufacturers from liability and provides no review for most compensation claims, the Project BioShield Act, which permits the emergency use of unlicensed vaccines during a public health emergency, and state laws designed to mandate vaccination. The Article argues that the 2009 experience suggests that policymakers may rely too heavily on liability limitations and vaccine mandates to solve the very real challenges raised by pandemic vaccines. By placing virtually all of the risks associated with vaccines on taxpayers and individuals who are vaccinated, without providing for sufficient review or oversight of claims by independent decision makers, these pandemic vaccine laws may provide support for pre-existing populist distrust of government and erode the public’s trust in vaccine safety. As a result, laws that are designed to facilitate the rapid, wide-spread distribution of vaccines may undermine the public’s willingness to be vaccinated. The Article concludes by suggesting that policymakers should reconsider their approach to pandemic vaccine laws. Rather than relying so heavily on limitations of liability and vaccine mandates, policymakers should utilize a more subtle mix of legal tools that foster the public’s trust in the public health system.

Number of Pages in PDF File: 43

Accepted Paper Series