Political struggles over the dangers of vaccines are as old as vaccines themselves. In 1721, a smallpox epidemic swept through Boston and controversy erupted over the practice of variolation, a crude precursor to vaccination. The educated elite vehemently opposed the practice, while Cotton Mather, a central figure in the Salem witch trials, was one of its leading proponents. Conflict was intense, as the opponents of variolation attempted to burn down Mather’s house in protest. Fast-forward to today, and questions about vaccinations, their risks, and who should decide vaccine policy remain bitterly contested.
Anna Kirkland takes on the politics of modern vaccination in her superb book, which centers on the vaccine court, an administrative tribunal created by the Vaccine Injured Children’s Compensation Act of 1986. One is immediately struck by the multidisciplinary nature of the analysis. Kirkland seamlessly weaves together literature from political science, law and society, political theory, public administration, health policy, and gender studies. At its broadest level, the vaccine story as told by Kirkland reveals the confluence among law, medicine, health policy, and the politics of family and motherhood and a cultural clash between those who frame health policy in terms of highly individual (and typically affluent) lifestyle choices (Eat kale! Do Pilates! Don’t smoke!) and policymakers who stress collective benefits and the provision of public goods.
From the perspective of political science, however, the book’s most central questions concern the ability of the vaccine court to address complex social and policy issues. Here, the analysis engages long-standing debates about the efficacy of courts-as-policymakers. The findings of this literature run the gamut. On one hand, Gerald Rosenberg famously argued that even celebrated examples of judicial policymaking, such as Brown v. Board of Education, largely fell flat, representing a “hollow hope” at best and, at worst, political “flypaper” that traps activists with limited resources in a largely feckless mode of advocacy (The Hollow Hope: Can Social Litigation Bring About Social Change, 2008). By contrast, Matthew E. K. Hall, looking at many of the same cases, shows that the Supreme Court often matters, even in contexts where we might expect it to struggle to make an impact (The Nature of Supreme Court Power, 2011).
Scholars who look beyond the Supreme Court paint a similarly discordant picture. Robert Kagan argues that American courts are often extremely costly, slow, and unpredictable, creating a system that manages to be too cumbersome for ordinary claimants to use and too erratic for large organizations to plan for (Adversarial Legalism: The American Way of Law, 2001). Indeed, in the context of vaccines, the threat of large and unpredictable jury verdicts in tort law arguably contributed to the exit of some manufacturers from the field of childhood vaccines altogether in the 1980s. Others, like Charles R. Epp, maintain that the “fertile fear of litigation” can provide a means to challenge the status quo and eventually stimulate policy change, as legalized forms of accountability can provide both a catalyst and a template for reform (Making Rights Real: Activists, Bureaucrats and the Making of the Legalistic State, 2009).
Kirkland takes a slightly different tack and asks: Does the vaccine court provide a useful forum for sorting out contentious debates over health policy that hinge on medical science? Her largely positive answer is surprising at first glance, at least if one believes that courts—whatever their form—are prone to “junk science.” The gist of her argument, however, is that the vaccine court should not be judged by its ability to “transcribe science into law” (p. 200) but by its capacity to create a site of social and political contestation that promotes justice. From this vantage, while far from perfect, the vaccine court has many virtues. First, Kirkland argues, it has democratized the debate by giving families a forum to air grievances about scientific issues, which are typically left to experts in other forums. Second, the vaccine court has encouraged scientific inquiry by requiring experts to develop studies that would withstand scrutiny in court and by giving scientists time to complete crucial studies before rendering judgments. (Here, the vaccine court has a distinct advantage over ordinary courts where judicial verdicts and science can be out of sync.) Third, it provided a mechanism for holding anti-vaccine activists accountable for their claims. According to Kirkland, their eventual losses in the vaccine court undermined their credibility in promoting an anti-vaccination policy agenda. She contends that we can see these virtues in the autism cases. Here, activists were given an opportunity to challenge the medical establishment while being required to marshal persuasive evidence.
The collective effect has been to safeguard our “immunization social order” (p. 2), which is a set of institutions, policies, and practices that encourages vaccinations to be seen as a civic duty, produces high levels of vaccinations, and provides clear health benefits. The vaccine court has buttressed this social order not only by encouraging more studies and debunking bogus claims but also by providing a remedy to people—however small the number—that suffer from vaccinations from no fault of their own. (The vaccine compensation system supports immunization in a more direct way: It provides greater certainty for vaccine manufacturers about the potential liability, which allows them to plan and insure against the risk of vaccine-related injuries.)
This book is primarily about the details of the vaccine case and its implications, but it also embodies many of the virtues of rigorous qualitative research. For starters, it puts to rest the old cliché that case studies involve “small n.” There are literally thousands of observations in Kirkland’s analysis across multiple levels of analysis. More than that, it teaches crucial lessons about measuring complex phenomena. It reminds us that single “social facts” can have multiple meanings within political discourse. For example, scientific consensus on the benefits of vaccines is a well-established fact, but it means very different things to contending stakeholders. Pro-vaccine regulators see it as legitimizing their views, while vaccine opponents see it as further evidence of a lopsided, skewed vaccine industry. The analysis brings our attention to the political processes through which different interpretations struggle for dominance and how the institutional setting of this process matters. It would be hard to capture this dynamic (and crucial) aspect of politics in a spreadsheet.
Of course, the trade-off for all of this depth is breadth. There are always questions about the generalizability of case studies—questions that Kirkland acknowledges. But Vaccine Court is an impressive reminder of the value of meticulously researched, theoretically nuanced case studies that illuminate important policy issues and contribute to core disciplinary debates.