Book Review: Vaccine Court: The Law and Politics of Injury

Vaccine Court: The Law and Politics of Injury. Anna Kirkland, New York: NYU Press, 2016, 273 pp.

Vaccine Court adds to a growing literature on the social aspects of vaccination. What sets this text apart is its focus on a previously understudied topic: the U.S. Vaccine Court. The vaccine court is a legal institution in the United States that operates through the U.S. Court of Federal Claims. It was founded in the 1980s following controversies that surrounded the whole-cell pertussis vaccine (which has since been replaced by a safer acellular version). Today, the court functions to: (1) provide compensation to persons injured by vaccines; (2) offer an audience for vaccine controversies and, through this, a vehicle to make vaccines safer; (3) protect vaccine manufacturers, and the entire U.S. vaccination program, from the tort system (and particularly excessive awards sometimes associated with jury trials); and (4) to divert parental dissatisfaction with vaccines away from oppositional social movements.

Written by a political scientist, the text is primarily concerned with the law and the social activism that surrounds the vaccine court, particularly what Kirkland refers to as the “vaccine-critical movement.” As such, the book functions in some ways as an ethnography of a particular component of the U.S. legal system. It shows how U.S. law handles social problems generally and confronts scientific or medical problems related to controversial issues specifically.

Methodologically, Kirkland relies on court records as her primary source of data, supplemented by direct observations of court proceedings and a few personal interviews with petitioners’ attorneys. Unfortunately, special masters, the judges of the vaccine court, are prohibited from giving interviews, and privacy protections prohibited the author from reaching out to the parents who brought petitions to the court. Also unfortunately, Kirkland was unable to arrange interviews with leaders in the vaccine-critical movement. Instead she relied on their publications, published speeches, blog posts, and press conferences to describe the various positions of the vaccine-critical movement. This lack of a truly holistic approach to data collection, while perhaps unavoidable, does impact the quality of the overall product. This is not an ethnography in the way anthropologists would typically use that term. That said, the text does offer important insights into the legal system and the legal aspects of vaccination.

The text is organized into two main parts: a broad introduction to vaccination-related issues in Chapters 1–3, and a more focused review of the vaccine court in Chapters 4–6. The highlight of the book is Chapter 6, in which Kirkland describes in great detail the Omnibus Autism Proceeding—a series of six test cases, representing thousands of claims—that were presented before the vaccine court from 2002 to 2008. The “autism showdown,” as Kirkland describes it, was a critical moment in U.S. vaccine history. As she says:

The stakes were very high. Linking vaccines and autism could cause widespread vaccine refusals and imperil public health’s greatest achievement: the banishment of infectious diseases. … Verdicts for the thousands of families would bankrupt the compensation fund. [However,] verdicts against the families would leave them uncompensated for a lifetime of expensive care for their children in a society with a meager safety net. (p. 174)

The chapter goes on to detail the mobilization of the vaccine-critical movement around autism, the evidence that was presented at the vaccine court, how the cases were evaluated, and ultimately the impact that the unanimous findings—that compensation to parents of children with autism was not warranted because there was no association between autism and vaccination—had on vaccination law, the vaccine-critical movement, and U.S. society.

The other particularly strong aspect of the text, at least from an anthropological perspective, is Kirkland’s discussion of what she terms the “immunization social order” in the United States, “the set of institutions, laws, pharmaceutical biotechnologies, and social practices that work together to produce high levels of vaccine coverage to prevent a wide range of diseases” (p. 2). Vaccination is a complex issue, and Kirkland’s concept of the immunization social order, which is woven throughout the book, portrays this complexity in a refreshing and useful way.

Theoretically, Vaccine Court does not make a particularly strong contribution. Kirkland does give a few nods to critical theory throughout the text. While acknowledging in the Introduction that the law “often operates to justify and sustain hierarchies” (p. 23), the author dismisses this approach and instead focuses on how social movements, like the vaccine-critical movement, can mobilize the law to accomplish their goals. Kirkland also, and in slightly more depth, explains how both vaccine-critical sentiment and the actual cases brought to the vaccine court are primarily the purview of well-educated, well-off, white elites. This is an important aspect of vaccination in contemporary U.S. society that is often overlooked in the medical and public health literature, and in some of the social science literature on vaccination as well. It is regrettable that Kirkland was not able to devote more attention to this issue. Finally, Kirkland acknowledges—but only in the Introduction—the role that feminist health activism has had on producing the context for contemporary political and legal claims of vaccine injury. While she also acknowledges that feminist theory could be a lens through which to view her topic, she ultimately does not utilize this approach.

Given that few studies are available that focus on the U.S. Vaccine Court, or how vaccine injuries are legally determined, this book makes a valuable contribution. Because of its legal focus, the book may be useful for those studying the anthropology of law. In particular, Chapters 4 (Knowing Vaccine Injury through Law) and 6 (The Autism Showdown) might be of interest for students in anthropology of law classes. The first details the vaccine court and how it compares to other legal and social institutions for injury compensation in the United States and around the world, and the second focuses on the Omnibus Autism Proceeding. For courses in medical anthropology, this book may be too specific and too far out of mainstream anthropology writing to be of much use, especially for undergraduates. However, the text should be useful for researchers interested in the legal aspects of vaccination, or vaccination in the United States in general.

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