. "Appendix I: Vaccines and Immunotherapies to Control Addiction in Minors: The Legal Framework." New Treatments for Addiction: Behavioral, Ethical, Legal, and Social Questions. Washington, DC: The National Academies Press, 2004.
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New Treatments for Addiction: Behavioral, Ethical, Legal, and Social Questions
izes the wide variety of these immunotherapies throughout much of the discussion, but social, legal, and ethical questions can obviously hinge on the nature, legality, and public consequences of the particular addiction.
Legal problems associated with immunizing human beings (including minors) against addictions generally fall into two broad categories, once the ethical, scientific, and policy hurdles of deciding whether these kinds of immunotherapies should be available at all have been cleared. The first grouping of issues involves the requirement for a patient’s informed consent to any kind of treatment, including immunotherapy.1 The second concerns liability for any injuries the patient sustains as a consequence of having been immunized.2 This appendix concentrates on the consent problem presented when children are to be given immunotherapy, not the liability issue. More precisely, it deals with the subset of autonomy and consent issues that become relevant when authority figures seek to administer vaccines designed to prevent or control nicotine, alcohol, and drug abuse addiction in minors.
No constitutional or common law right to use addictive substances exists,3 and such use may well be deemed illegal under state or federal law,4 but individuals have constitutional and common law protections when it comes to others’ attempts to interfere with their bodily integrity to circumvent addiction.5 When anyone seeks to impose therapy on another regardless of consent in the name of public health, protection of third parties, crime prevention purposes—or indeed in that person’s own purported best interests—the law will respect the targeted individual’s right to refuse treatment unless very strong societal interests are found to justify trumping that person’s autonomy.
This means that the law generally acknowledges a competent adult’s right to decline therapy to treat an established addiction or to refuse vaccination to prevent one. But the legal situation is far more complicated when the patient is a minor, particularly one on whom the parent or another authority figure seeks to impose immunotherapy, as this appendix
On the history and development of the doctrine, see generally Katz (1984) and Waltz and Scheuneman (1970).
See generally The National Childhood Vaccine Injury Compensation Act of 1986, 42 U.S.C. §§ 300aa-1 (2003), and Mariner (1995).
See Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, reh’g denied, 496 U.S. 913 (1990) (holding that the state of Oregon could constitutionally ban the use of peyote and therefore could legitimately deny unemployment compensation to those who illegally use it for religious purposes).
See id. (Oregon’s prohibition of the use of peyote deemed constitutional). See generally Controlled Substances Act, 21 U.S.C.S. § 801 (2003).
Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129 (1914) (“Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”)