I am an alumnus of the University of Michigan twice over. I completed a B.S. in Chemistry with Honors there in 1984 and then I stayed on to do obtain my M.D. in 1988. I look back very fondly on those eight years spent in Ann Arbor, as several of my longtime friendships were forged or solidified during those years. Consequently, I still care about the place. Indeed, I even once tried to see if I could get a position in the Department of Surgery there a few years back, but unfortunately the “fit” just wasn’t there at the time. That’s why it distresses me when I see my alma mater suffer from a self-inflicted wound, almost as much as the plight of the Michigan Wolverines bothers me, given that never before in my life (at least not since I was old enough to pay attention), have the Wolverines sucked so badly and so hard. Given that level of football futility, though, I consider it even more important that my alma mater not provide any more ammunition to those who would enjoy making fun of it. It doesn’t matter to me that I never went to law school at Michigan; it’s all part of the same campus to me.

This time, the embarrassment comes in the form of an article in the Michigan Law Review by a person who has previously been a subject of posts by both Dr. Novella and me. I’m referring to Dr. Jay Gordon, whom we have both–correctly, I believe–labeled as being, if not fully anti-vaccine, at least a prominent and major apologist for the anti-vaccine movement. Unfortunately, because he is the pediatrician taking care of Jenny McCarthy’s son Evan, he has gained even greater prominence in the antivaccine movement than ever, to the point where he gave a speech last summer to the antivaccine “Green Our Vaccines” march on Washington and where he is regularly called up by TV producers to give a false “balance” whenever a discussion of vaccines and/or autism comes up. He also wrote the foreword to Jenny McCarthy’s latest paean to autism quackery and attack on vaccines as the cause of autism in which he blithely repeated some of the worst distortions of the antivaccine movement. Unfortunately, Dr. Gordon lacks the intestinal fortitude to stop the piteous denials any time he is called out for his parroting of antivaccine pseudsocience and to embrace his inner antivaccinationist. Then, at least, we wouldn’t be treated to the spectacle of his simultaneously claiming he is “pro-safe vaccine, not anti-vaccine” while at the same time saying he “doesn’t give a lot of vaccines” and admitting that parents have actually had to persuade him to vaccinate “reluctantly.”

So what was the topic of the Michigan Law Review article that Dr. Gordon was apparently asked to pen? It’s actually an interesting question from a legal, political and civil rights standpoint, specifically: Whether or not parents should be held legally liable for refusing to vaccinate their children. Not surprisingly, Dr. Gordon took the “no” position. Unfortunately, as we’ve come to expect of Dr. Gordon, he uses a number of highly dubious arguments. However, more interesting to me, having had a nearly four year history sparring online with him off and on, was the seemingly “kinder and gentler” antivaccine stance that he took in this article.

But first, let’s take a look at the debate. The symposium published in First Impressions (the online companion to the Michigan Law Review) was entitled Liability for Exercising Personal Belief Exemptions from Vaccination, and it contained the following articles:

  1. Choices Should Have Consequences: Failure to Vaccinate, Harm to Others, and Civil Liability by Douglas S. Diekema.
  2. Parents Should Not be Legally Liable for Refusing to Vaccinate their Children by Dr. Jay Gordon.
  3. Unintended Consequences: The Primacy of Public Trust in Vaccination by Jason L. Schwartz.
  4. Challenging Personal Belief Immunization Exemptions: Considering Legal Responses by Alexandra Stewart.
  5. Gambling with the Health of Others by Stephen P. Teret and John S. Vernick.
  6. The Problem of Vaccination Noncompliance: Public Health Goals and the Limitations of Tort Law by Daniel B. Rubin and Sophie Kasimow

There were a number of fascinating issues raised here. Although it’s obvious that universal vaccination is a public health policy good, given that the higher percentage of vaccinated children, the greater the herd immunity, there is always the nagging question of how far the state should go to mandate vaccination in a free society; i.e., how much coercion is acceptable to bring about maximal levels of vaccination? In other words, what is the proper balance between the needs of society as a whole and the rights of the individual? The next interesting legal and moral question is whether parents who refuse to vaccinate should be held liable for injuries to other children if their unvaccinated child passes on an infectious disease. Personally, I tend to believe that it is entirely reasonable to require vaccination as a precondition for school or day care and that exemptions should be primarily medical in nature. I grudgingly allow that the freedom of religion guaranteed in the First Amendment probably requires religious exemptions (although I do not understand why religion should be given such a privileged place in society that it can endanger public health), I am far less convinced that philosophical exemptions should be mandated. I realize many may disagree with this position, but I would hope that our disagreements would be based on (1) the best science regarding the benefits and risks of vaccination and (2) honest beliefs regarding the proper balance between public health concerns and individual liberty. Clearly, this is an area of debate. I also tend to believe that if parents refuse to vaccinate their child and that child passes an infectious disease to another child, then those parents should be potentially legally liable. Indeed, Douglas Diekema argues this position very well.

Unfortunately, Dr. Gordon does not meet at least condition #1 above. He does not base his arguments on the best science.

A Change of Story

The first thing I noticed when I read Dr. Gordon’s article is that this is a very different Dr. Gordon than I’m used to seeing. Gone are the claims that vaccines cause autism. His most noticeable new trait is that gone are his usual assertions that vaccines cause autism. Indeed, Dr. Gordon didn’t even mention mercury or vaccines as a potential cause of autism once in his entire article! If I believed in miracles, I would write to the Pope and demand that the Church investigate this Michigan Law Review article as being every bit the equal of a divine healing at Lourdes, given Dr. Jay’s history! In order to emphasize the amazing change in Dr. Gordon’s demeanor towards vaccines, let’s take a little trip down memory lane, shall we? Let’s see what Dr. Gordon really thinks about vaccines:

  1. “Vaccines can cause autism.” (from the Foreword to Mother Warriors: A Nation of Parents Healing Autism Against All Odds by Jenny McCarthy.)
  2. “Yes, most vaccines have much less mercury, but wait until the evidence against aluminum in vaccines becomes common knowledge. The body of research regarding aluminum’s harm to human cells already contains hundreds of articles.” (from the Foreword to Mother Warriors: A Nation of Parents Healing Autism Against All Odds by Jenny McCarthy.)
  3. “We can only guess what harm we might be causing to babies with the huge overdoses of aluminum.” (from the Foreword to Mother Warriors: A Nation of Parents Healing Autism Against All Odds by Jenny McCarthy.)
  4. “The official position of the American Academy of Pediatrics may be the same as my personal position, but they are far too involved with the pharmaceutical industry to actually do anything but pay lip service to an open discussion. The CDC and the AAP are filled with doctors whose research, speaking engagements, and travel are often funded by the manufacturers of vaccines. Many of these same doctors are paid consultants, and some later go to work full-time for the pharmaceutical industry.” (from the Foreword to Mother Warriors: A Nation of Parents Healing Autism Against All Odds by Jenny McCarthy.)
  5. “We doctors need to stop deceiving our patients into thinking that immunizations are ‘free.’ Every medical intervention costs the body something, and we have a legal and moral obligation to tell parents.” (from the Foreword to Mother Warriors: A Nation of Parents Healing Autism Against All Odds by Jenny McCarthy.)
  6. “I think the immune system, like every other system of the body, matures slowly, and that it can better tolerate viral infection at older ages and better tolerate one virus at a time. The other thing is that vaccines all contain other ingredients. They contain aluminum, they contain tiny bits of formalin [an aqueous solution of formaldahyde]. So I recommend waiting as long as parents are comfortable, and vaccinating very, very slowly.” (Interview with Cookie Magazine.)
  7. “I don’t give a lot of vaccines.” (from An Open Letter on Vaccines, deconstructed by Steve Novella on SBM.)
  8. “In 1980 I abandoned the recommended vaccine schedule. I received dozens and dozens of phone calls from moms and dads reporting that their child had received shots a couple of days ago and they were acting “a little different.” They couldn’t quite put their finger on it but their child was just not acting quite the same as before I gave the shots. They’d ask if this was okay…was it normal? Initially, as I was trained to do, I replied ‘yes.’ After dozens and dozens and dozens of phone calls, I decided that I had better listen to these moms a lot more.” (from An Open Letter on Vaccines, deconstructed by Steve Novella on SBM.)
  9. “I gave a half dozen vaccines today. I gave some reluctantly but respected parents’ wishes to vaccinate.” (Link.)
  10. “I think that the public health benefits to vaccinating are grossly overstated. I think that if we spent as much time telling people to breastfeed or to quit eating cheese and ice cream, we’d save more lives than we save with the polio vaccine.” (Interview with Cookie Magazine.)

Note that Jenny McCarthy’s book, for which Dr. Gordon wrote the Foreword, was published in September 2008. In fact, none of these are old quotes by Dr. Gordon. Also note that Dr. Gordon has been palling around with some of the most rabid antivaccinationists out there and has become much in demand as a speaker on the antivaccine circuit and a guest on TV shows. That’s because it’s clear that Dr. Gordon believes vaccines do great harm, and he’s good for the “vaccine skeptic” viewpoint. He believes that vaccines are chock full of nasty “toxins” and that they cause autism. He long ago abandoned the conventional vaccination schedule and now is a “brave maverick doctor” who goes his own way. No meekly following along with the herd of pediatricians in thrall to big pharma-controlled whims of the CDC and AAP, he! No reliance on large epidemiological studies showing no link between either mercury in vaccines and autism or vaccines themselves and autism!

So what does he say about vaccination for this article for the Michigan Law Review? As I said before, we see a “kinder, gentler” Dr. Gordon:

Over many years, seeing thousands of children, my point of view about childhood vaccines has changed. I believe that parents have the right to decide when and how their children receive vaccinations and also have the right to decline any or all vaccines. Like many medical interventions, vaccines have risks and benefits, and parents may elect nonvaccination as the better choice for an individual child. The societal ramifications are significant and should certainly be a part of any discussion.

So far, this is nothing different from what Dr. Gordon’s been saying all along, albeit couched in less inflammatory language and cleverly framed as an issue of individual freedom. What has changed is that Dr. Gordon now admits that societal ramifications are important and that they should be part of any discussion. Quite frankly, in all my years sparring with him, I do not recall his ever admitting that societal ramifications mattered one whit. Perhaps this is the beginning of a change in Dr. Gordon.

Or not:

When children or babies who have been in contact with other children (or adults) contract most illnesses, there is no feasible way to know from whom they got the disease. Whether one is talking about a routine winter viral illness, chickenpox, or whooping cough, the contagion could have come from a child with overt disease signs and symptoms, an asymptomatic carrier, or another, perhaps mutual, contact. Vaccines are not 100% effective, so that even a fully vaccinated child can contract an illness or carry that illness and give it to another child. Blaming a specific individual—let alone suing one—because your child gets sick has no credible medical basis.

As Autism News Beat points out, this is easily demonstrably false. He used the example of the recent San Diego outbreak of measles, where it was quite feasible to trace the outbreak to a single unimmunized seven-year-old who caught the disease while on vacation in Switzerland. In fact, it was possible even to determine with a high degree of probability when and where this child infected other children with his particular strain of measles. Apparently the disciplines of molecular diagnostics and forensics are too new for Dr. Gordon to be aware of them. But it’s even worse than that. He seems completely oblivious that such techniques are applied to outbreaks all the time to identify the strains of bacteria or virus that are responsible for an outbreak. It’s done all the time in the case of outbreaks of food contamination: The specific strain of E. coli or Salmonella is routinely traced back to the manufacturer all the way back through the chain of distribution, starting at the product purchased and following the infection back to through the chain of distribution to the manufacturer. The concept is the same for tracing the source of an outbreak. It beggars the imagination that Dr. Gordon could be so oblivious to these simple facts. Of course, he’s more interested in demonizing vaccines than in being scientifically accurate. Same as it ever was. He’s just become subtler about it:

There are many valid reasons to support vaccination, but they don’t support removing the right to refuse vaccinations. There are also situations—medical and personal—which justify waiving all or some childhood vaccines, but these are not good reasons to abandon vaccines altogether.

There you go again, Dr. Jay, with the false dilemma. No, it is not a matter of either abandoning vaccinations altogether versus total support. It’s not a choice between supporting vaccination or abandoning vaccines altogether. But, again, Dr. Gordon’s false dilemma is even more false than that. It doesn’t require abandoning vaccination altogether to endanger public health. Just having the vaccination rate drop below the rate necessary for herd immunity (90% in most cases) will do. At that point, outbreaks become increasingly more likely, as our British friends have discovered. Indeed, that’s the reasons measles is now endemic again in the U.K. after having been declared eradicated a mere 15 years ago. It was the antivaccine movement spurred on by the dubious “findings” of the “research” of Andrew Wakefield that scared U.K. parents into not vaccinating, with MMR uptake rates falling below 80% in some areas. The results were predictable, and they came true.

Dr. Gordon also goes on to pull out the false equivalency argument:

Parents who vaccinate their children base their decisions on the advice they receive from their pediatricians and the other knowledge they have gathered. Parents who choose to waive vaccinations do so for similarly valid reasons.

Very clever, Dr. Jay. Unfortunately, Dr. Jay neglects to mention that there are antivaccine groups out there dedicated to feeding an unrelenting stream of propaganda based on dubious or no science demonizing vaccines to parents, aided and abetted by certain pediatricians. I do like the not-so-subtle implications that Dr. Gordon’s advice based on his own easily fooled personal clinical observations, is the equivalent of science-based recommendations about vaccinations. I’ll give him a hint.

They aren’t.

But Dr. Gordon’s not finished yet with the false dilemmas yet:

Adverse outcomes can occur from both vaccination and nonvaccination. Vaccines work very well at creating immunity to illnesses, so there are very few situations that would likely lead to transmission of an illness from an unvaccinated child to a vaccinated child. The obvious exceptions would be infants too young to have received a full complement of shots and immuno-compromised children. Parents must protect these two groups of children by keeping them away from too many other children. Period. Newborns and young babies are at risk any time they are in public. We can only vaccinate against a very small minority of contagious illnesses; it is unwise to bring your newborn into preschool when you pick up your toddler, and equally risky to attend older children’s birthday parties with this baby. Further, parents of children taking high dose steroids for asthma or receiving immunosuppressive medicine for other diseases are strongly cautioned by their doctors to avoid the potential dangers I have described.

Although I am highly gratified that Dr. Gordon has finally–finally!–admitted the efficacy of vaccination in preventing infectious disease and that unvaccinated (or undervaccinated) children should be kept away from the unvaccinated, I reluctantly have to point out that the vaccinated can be infected by the unvaccinated. The reason, of course, is that no vaccine is 100% effective, as much as we would wish that it was. Indeed, if vaccines were 100% effective, then herd immunity wouldn’t be so important. Vaccinated children can be infected by the unvaccinated.

Dr. Gordon goes on to question the efficacy of the influenza and varicella zoster (chickenpox) vaccines. Note how he chooses vaccines that are a bit more controversial and for which the evidence supporting universal vaccination is not quite as overwhelming as for other vaccines. The reason is transparent, at least to me. By going after the “weaker” vaccines in the vaccine schedule, Dr. Gordon hopes to convince readers that there is a similar level of doubt about the entire vaccine schedule, a level of doubt so high that it is not unreasonable for parents to refuse to vaccinate based on the beliefs that vaccines are not that efficacious in preventing disease and that they carry unacceptable risks. Everything in Dr. Gordon’s editorial is designed to cast the efficacy and risks of vaccines in the worst possible light. Then he plays the “victim” card, whining that parents who refuse to vaccinate have been unfairly “vilified”:

In the absence of facts, doctors and others are trying to frighten people into vaccinating or not vaccinating. That fear includes the notions that unvaccinated children pose a great threat to others and that parents of these children are not being responsible. In fact, these parents are choosing what they consider to be the safest course of action for their children and pose very little, if any, danger to other children and adults.

I find this particulary ironic, given that Dr. Gordon and the mother of one of his patients, Jenny McCarthy, have been two of the most prominent of those frightening people into not vaccinating their children. Dr. Gordon appears oblivious to any responsibility he might bear for appearing on TV shows arguing that vaccines cause autism or credulously repeating the exaggeration and misinformation spread by Jenny McCarthy, J.B. Handley, and the rest of the antivaccine movement about formaldehyde, aluminum, and other allegedly horrible “toxins” in vaccines that are not toxic at the levels present in vaccines. He himself has joined in spreading fear–fear of vaccines–by demonizing vaccines every opportunity he gets, including this law review article. Indeed, he takes it to a level I haven’t seen before:

Some medical interventions are not controversial, and some prompt only mild controversy. For example, if a child has acute lymphocytic leukemia, the cure rate with conventional medical care approaches ninety percent, and very few doctors or parents will argue against the standard treatments offered in spite of their known complications and adverse reactions. But vaccines are presently controversial, and purported truths about safety and efficacy are challenged daily by lay people and physicians.

Wow. Just wow. Did Dr. Gordon actually just compare vaccines to chemotherapy for ALL? I believe he just did, even though any level of risk from vaccines is many orders of magnitude below those that chemotherapy poses. He also falsely labels vaccines as “controversial.” They are not, at least not among science-based physicians. The “controversy,” such as it is, is in reality what is commonly termed a “manufactroversy,” in other words, a controversy manufactured where none existed before, at least among scientists. Dr. Gordon is desperate to paint the manufactroversy about vaccines as a real scientific controversy. Of course, he’s a bit hamstrung in that he seems unable or unwilling in this particular venue to let his freak flag fly and come right out and say that he believes vaccines cause autism, neurodevelopmental disorders, and a variety of immune disorders, such as asthma, as he has in other venues. What he does do is to point out the “CYA” language in the package inserts of vaccines and try to “jazz it up” as evidence that vaccines are very, very dangerous. He then returns to his favorite technique in this article, the false dichotomy:

The list of side effects from adverse reactions to vaccines, in a Physicians’ Desk Reference “warning” section, given out of context, would probably frighten many parents out of vaccinating at all. There are thirty or more items on that list. Similarly, the list of symptoms and complications of the illnesses against which we vaccinate could scare parents into giving every shot available as soon as possible.

Pediatricians and other physicians use the latter option on a daily basis.I share my colleagues’ disdain for scare tactics from the “antivaccine” camp, but I object equally to doctors using fear and misinformation to try to convince parents (and legislators) that vaccines are risk free. Both sides are distorting the truth for their own purposes. Childhood illnesses are part of the first decade of life; immunity is acquired, and the consequences are almost always minor.

I suppose that’s why the “harmless” measles is the leading cause of preventable mortality worldwide, killing around 200,000 children a year worldwide. Of course, it was much worse before mass vaccination programs. Ten years ago, measles killed around 900,000 children. And why has the mortality fallen so much. The reason is mass vaccination programs spearheaded by WHO.

My irony meter also just about exploded at Dr. Gordon’s “disdain” for the scare tactics from the antivaccine camp (note his use of quotation marks!) given that he himself has engaged in many of the exact same scare tactics of the antivaccine fringe, be they the “formaldehyde” gambit, the “toxins” gambit, or fear mongering about mercury. The hypocrisy and use of the logical fallacy of the false dichotomy are astounding, even by Dr. Gordon’s usual standards.

So much for the “kinder, gentler” Dr. Jay, I guess.


I’m very, very disappointed in the editorial staff of the Michigan Law Review, including Editor-in-Chief Adrienne Fowler, and Managing Editor Stefan Atkinson, for having fallen for Dr. Gordon’s portrayal of himself as some sort of expert on issues related to vaccination, be they medical or legal. He is an expert on neither immunology, vaccination, nor the law. As an alumnus of the University of Michigan, albeit not the Law School, I’m very unhappy to see such a self-inflicted black eye. The reason is simple, and I’m going to use a saying that I have permission to steal blatantly from a couple of online acquaintances: Relying on Dr. Jay Gordon for legal acumen and advice is akin to appointing Judge Judy to the Supreme Court. It’s bad enough that the line between news and entertainment has all but disappeared. There are two exceptions, of course. Judge Judy is actually a retired judge; Dr. Gordon has no experience in the legal profession. In addition, Judge Judy, while chaff entertainment, does not have a reputation for being spectacularly wrong so often. Dr. Gordon, as shown above, does. Apparently the editors were blinded by the glare of his celebrity associations. I can’t really think of any other reason why they would have chosen him as an “expert” to write an editorial as part of this online symposium.

That is why I, as a disheartened alumnus of the University of Michigan, urge any other fellow alumni of U. of M., or anyone concerned with medical and legal accuracy and the application of science-based medicine to the issue of mandatory vaccination, to write to Ms. Fowler ([email protected]) and Mr. Atkinson ([email protected]) to voice a strong complaint over their having published the misinformation and exaggerations of a pediatrician known to be an apologist for the antivaccine movement. The issue of legal liability for parents who refuse to vaccinate is a contentious and fascinating issue that is ill-served by the self-serving and misinformed posturing of someone like Dr. Gordon. Indeed, reading all the articles in this rather interesting issue, it is clear to me that the debate is actually far more informative without Dr. Gordon’s contribution, such as it is.

And if you do write to the Michigan Law Review, please feel free to cc: a copy to Dr. Jay himself. Tell him Dr. Gorski said hi.


Posted by David Gorski

Dr. Gorski's full information can be found here, along with information for patients. David H. Gorski, MD, PhD, FACS is a surgical oncologist at the Barbara Ann Karmanos Cancer Institute specializing in breast cancer surgery, where he also serves as the American College of Surgeons Committee on Cancer Liaison Physician as well as an Associate Professor of Surgery and member of the faculty of the Graduate Program in Cancer Biology at Wayne State University. If you are a potential patient and found this page through a Google search, please check out Dr. Gorski's biographical information, disclaimers regarding his writings, and notice to patients here.