When Texas Governor Rick Perry decided to unilaterally mandate that girls be vaccinated against a sexually transmitted virus, I wondered why only girls were getting the vaccine. Obviously, they get cervical cancer and boys don't, but girls also get HPV from boys. If vaccination against an STD is such a great thing, why not make it mandatory for all children?
Jessie Hill at
Prawfsblawg had the same question.
The rationale for this is presumably that only girls and women are capable of getting cervical cancer, the most serious condition caused by HPV, as well as that Merck has so far obtained approval of the drug only for women and girls. Yet, while the data are somewhat uncertain on its usefulness for boys, there might be some benefit for boys receiving the vaccine as well – such as protection against genital warts and penile and anal cancer. These latter two conditions are admittedly extremely rare, but cervical cancer is also rare (though much less so). In addition, it stands to reason that immunizing boys who can carry and transmit the HPV virus will further protect girls against HPV and cervical cancer, because it will increase the “herd immunity” effects of mandatory vaccination. If only girls are required to be vaccinated, it is likely that a larger percentage of those girls will nonetheless get the virus, as reported by a recent London Times article, which said that, according to one study, if boys are vaccinated “more than 90 per cent of cases of the disease caused by the four commonest strains of human papilloma virus (HPV) could be eliminated, instead of just over three quarters if only girls were vaccinated.” (Note: The study assumed that only 70% of girls would be vaccinated.) A similar argument was made here. (Thanks to the Reproductive Rights Prof Blog for the informative posts on this.) Of course, even if all girls are required to be vaccinated, some will not be, due to their own or their parents’ noncompliance, or due to religious or conscientious or health exemptions; in addition, for some subset of those who are vaccinated, the vaccine will not be effective. This is why it makes sense to require boys to be vaccinated as well.
I'd love to see the arguments presented against mandating vaccination of boys. But Hill goes on to question if this could be a Title IX situation.
So, I’m wondering whether there are any legal (constitutional, Title IX, etc.) implications to vaccinating only girls. It seems to me that there are, but I have heard so little on this issue that it makes me think I am missing something. Laws that would require only girls to be vaccinated would be gender discriminatory on their face; is this discrimination justified simply by the fact that the drug is only approved for girls at present? Or by the fact that girls are most likely to suffer the most serious consequences about HPV? And if the latter, don’t we at least have a narrow tailoring problem, since the law would be even more protective of girls if it required boys to be vaccinated as well, assuming the vaccine would not be harmful and would probably be beneficial to those boys as well?
I think this does present a Title IX problem since, as Hill points out, boys can have ill effects from HPV as well. The argument that only girls get cervical cancer doesn't take into account how girls can get the virus. If this really is a health issue, it seems to me much more reasonable to include boys in the mandate.
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