How Dobbs v. Jackson is affecting vaccine innovation

Dobbs v. Jackson has had a ripple effect across healthcare—from increasing the danger of medical management of miscarriages and risk of maternal mortality, to making it more difficult for patients with autoimmune disorders to access medications.

Now, vaccines are on the line, as well.

During the 2022 state legislative sessions, a number of states introduced bills targeting the use of fetal tissue technology in the development of vaccines. This legislation aims to undermine vaccination requirements and access, which could lead to an increase in vaccine-preventable diseases in the U.S.

But the dangers do not stop there.

“What pro-vaccination groups saw in 2022 was, in part, activated by the Dobbs v. Jackson decision and was very concerning,” says Rekha Lakshmanan, Chief Strategy Officer at The Immunization Partnership. “Many of us advocates are really, really worried that the decision is going to serve as a long-term catalyst and motivating factor for more of this kind of legislation to be filed. And to that point, what we also observed was a melding and consensus building amongst different fringe groups, in this case, the anti-vaxxers aligning with right-to-life organizations.”

State bills introduced in 2022

In Minnesota, HF 2834, introduced by eight state representatives in January 2022, proposed to require labeling “whether medication, medical equipment, or device is developed using aborted fetal tissue; and civil remedies provided.” HF 2834 failed to gain traction.

In Oklahoma, SB 846 stated, in part, “It shall be unlawful for any person, partnership, association or corporation… to submit to or take any vaccination, injection, shot or medication for any virus, disease or condition if fetal cells were used in the development of such vaccine or medicine and such practice is a violation of a sincerely held religious belief of the employee, volunteer or applicant for employment.” As in Minnesota, the bill was unsuccessful.

In Michigan, two bills—HB 5558 (which prohibited fetal tissue research) and HB 5559 (which criminalized it)—passed in the state house at 2:30 a.m. Friday, July 1, by a 21-16 vote following no discussion or debate. As reported by the Detroit Free Press, “Neither measure was scheduled for a final vote. But after the Senate finished approving next year’s budget—generally one of the last votes taken before lawmakers go on a two-month summer break—the GOP majority pulled both bills from a committee and put them up for a vote.” The bills were ultimately vetoed by Gov. Gretchen Whitmer.

In Louisiana, “there was an unusual level of activity related to anti-vaccine legislation,” explains Lakshmanan. “Louisiana was typically a relatively quiet state. But we started to see a lot more anti-vaccine engagement starting around late 2020, early 2021. And then it really escalated in 2022.”

HB 640, for one, proposed, “relative to vaccines and vaccine-related pharmaceuticals; to require sufficient information regarding vaccines and vaccine-related pharmaceuticals distributed in the state; to require the Louisiana Department of Health to provide certain information; and to provide for related matters,” i.e. labeling whether or not fetal tissue technology was used in the development of a vaccine.

Dobbs v. Jackson is driving vaccine-related legislation in the states.
Emerging anti-vaccine themes for 2023 (Credit: Rekha Lakshmanan/Kirstin R.W. Matthews)

Misinformation and bad policy

“Lawmakers often do not understand, or think of, the implications or unintended consequences of bills like these,” explains Lakshmanan. “What happens—and what we have seen happen before—is first we talk about vaccines, then we start talking about other medications, then we start talking about research and development into different diseases, and it continues to snowball.”

“The public has to understand that many of these everyday medications we take have used this technology in their development,” she continues. “When we use legislation like this to target vaccines, everyday medications, and medical technological developments are not far off.”

Her concerns are well-founded. Public misunderstanding of fetal tissue technology in medical development has led to questionable medical policy in the past.

As reported last year by WebMD and Becker’s Hospital Review, “A hospital system in Arkansas is requiring employees to confirm that they won’t use common medications—such as Tylenol, Tums, and Preparation H—to receive a religious exemption for the COVID-19 vaccine,” with “the majority of requests cited the use of fetal cell lines in the development of vaccines as part of the religious exemption.” (Fetal cell lines are used to test and develop many common over-the-counter and prescribed medications, including antacids and cold medications.) The Arkansas exemption list covered 30 common medicines.

“What I worry about is that lawmakers are trying to score immediate points with their constituents,” says Lakshmanan. “But an easy win based on misinformation is ultimately no win at all in the long run.”

History of fetal tissue technology

Legislation to restrict the use of human cell lines in biomedical research is taking aim at well-established medical technology.

NIH authorizes widespread applications of fetal cell tissue research
The NIH authorizes fetal cell research for a variety of applications. (Credit: Guttmacher Institute)

“Fetal tissue research dates back to the 1930s, and has led to major advances in human health, including the virtual elimination of such childhood scourges as polio, measles, and rubella in the United States,” says the Guttmacher Institute (GI).

Not only does fetal tissue research have a long history of success, but it is also well-regulated, with staunch ethical parameters in place that prevent coercion or profiteering.

“Fetal tissue donation is regulated by the Uniform Anatomical Gift Act (UAGA), versions of which are in effect in every state,” GI explains. “38 states and the District of Columbia have UAGA laws that explicitly treat fetal tissue the same way as other human tissue, permitting it to be donated by the woman for research, therapy, or education. The remaining 12 states have laws that are silent, neither allowing nor disallowing the donation of fetal tissue. UAGA also prohibits profiting from the sale or purchase of anatomical gifts for transplantation or therapy.”

Additionally, as explained by Hans Clevers, a pediatric oncology researcher and head of the International Society for Stem Cell Research, “The NIH Revitalization Act of 1993 imposed additional restrictions on fetal tissue research, including mandated written informed consent from the donor as well as a signed statement from the attending physician affirming that the decision to abort and the decision to donate tissue for research are not related.” (This program was severely restricted under the Trump administration, then later revitalized under the Biden administration.)

As the Children’s Hospital of Philadelphia (CHP) explains, “Once cells are prepared from their original source, they can be maintained indefinitely in the laboratory. The process of maintaining these cells is commonly referred to as ‘cell culture’ or ‘cell passage.’”

Debate among religious groups

The major point of contention for anti-abortion groups is that “unlike embryonic stem cell research, which uses cells from days-old embryos created through in vitro fertilization, fetal tissue research uses tissue derived from induced abortion of pregnancies at or after the ninth week.” The tissue is used from abortive procedures because fetal tissue from miscarriages is often unsuitable for use.

Yet, there is some debate even amongst anti-abortion groups regarding the ethical dubiousness of the technology. “In the case of the Catholic Church, The Pontifical Academy for Life, the Vatican’s major policymaking body, examined the issue of congregants accepting vaccines made using fetal cells. Their decision expressed a preference that vaccines be made without the use of fetal cells when possible, but… these vaccines are “morally justified”… because of a lack of alternatives and the greater need to protect one’s children and those who are in contact with the children.”

The Ethics & Religious Liberty Commission of the Southern Baptist Convention (ERLC) has similarly concluded: “the use of the vaccines is justifiable based on the fact that we cannot change the way the cell cultures were obtained, there are no available alternatives, and the effectiveness of the vaccines as a means of preserving life and preventing suffering is clear.”  The ERLC noted vaccines developed using fetal cells in the 1960s do not increase the number of abortions performed today, likening the situation to a scenario in which an organ donation from a murder victim would not be denied purely because the death resulted from an “evil act.”

Both organizations ultimately concluded, “There are helpful and strategic ways we can advocate for pro-life issues. Neglecting the use of something so inherently pro-life based on its history is not one of them.”

Yet, the pandemic has created an arguably dissonant confluence point for more extreme anti-abortion advocates within the anti-vaccine space. As the paper, “Can ‘My Body, My Choice’ anti-vaxxers be pro-life?” posited, “Many ‘anti-vaxxers’ oppose COVID-19 vaccination mandates on the grounds that they wrongfully infringe on bodily autonomy. Their view has been expressed with the slogan ‘My Body, My Choice,’ co-opted from the pro-choice abortion rights movement. Yet, many of those same people are pro-life and support abortion restrictions that are effectively a kind of gestation mandate.”

“It’s a really savvy co-option of reproductive rights and the movement’s framing of the issue,” Lisa Ikemoto, a law professor at the University of California-Davis Feminist Research Institute, told NPR. “It strengthens the meaning of choice in the anti-vaccine space and detracts from the meaning of that word in the reproductive rights space.”

Fetal tissue innovation saves lives

Fetal tissue technology has been used in a number of vaccines: COVID-19, rubella, polio, hepatitis A, varicella (chickenpox), herpes zoster (shingles), smallpox, rabies, and adenovirus, to name a few.

For some of these vaccines, no alternative vaccines can be made without utilizing fetal tissue.

“Fetal cell lines are used with some vaccines because viruses need to be grown in cells, and human cells are often better than animal cells at supporting the growth of human viruses,” explains Immune BC.

The technology is so effective in the development of vaccines because “fetuses are not typically exposed to viruses in the womb, [therefore] their cells offered a way to ensure that future viral vaccines did not inadvertently contain other viruses that might be harmful to people. In addition to being free of potentially contaminating viruses, fetal cells offered another benefit for vaccine development. Because vaccines target viruses that infect people, the human viruses used to create vaccines grow best in human cells.”

And when it comes to the outcomes of these medical developments, the numbers do not lie. During the 1963-64 rubella epidemic, there were 12,500,000 cases with 2,160 deaths, the majority in neonates. In addition, an estimated 20,000 children were born with congenital rubella syndrome. Since 1966, with the rubella vaccine, the number of annual cases in the U.S. has dropped from 46,975 to just one in 2016.

In another example, the annual number of reported cases of Hepatitis A in the U.S. has declined from 32,859 in 1966 to 2,007 in 2016—a 93.9% decrease.

Most astounding, the annual number of reported cases of polio in the U.S. has declined from 33,300 in 1950 (1,904 deaths) to zero in 2016—a feat of medical technology against a disease that often left survivors physically disabled, with the most extreme cases requiring the use of iron lungs to keep patients alive. As of 1979, polio has been eliminated from the U.S. and work is underway for polio to be eradicated globally. Of course, polio is now seeing a resurgence globally (which has also impacted the U.S.), a sign of the need to continue vaccination.

Beyond vaccines, fetal tissue research has also provided key insight into both fetal development and disease progression and has led to important breakthroughs in understanding and treating Type I diabetes and Parkinson’s disease. Fetal tissue has also been explored in several areas including spinal cord injury and heart failure.

In essence, fetal tissue can act as a blank slate when it comes to drug development.

Long-term effects of legislation

Even with all of the evidence as to the importance of fetal tissue technology, however, it is still at risk.

“We are preparing for similar legislation in places like Texas,” says Lakshmanan (who is based in Houston). “These groups are calling for the extension of similar legislation in more conservative states and so there is little doubt that we will have to activate counter to a lot of anti-vaccine misinformation and legislation.”

“We anticipate that future vaccine policy debates will see other vaccine policy issues emerge that are linked indirectly to vaccine research, which we refer to as ‘sleeper’ issues,” says a paper Lakshmanan recently co-authored. “One emerging concern is related to cell lines used to develop or test vaccines. A few cells have existed for decades that were created from fetal tissue.” Dobbs v. Jackson “will give momentum to activists who seek to limit, or even outlaw, vaccines and vaccine research using this kind of technology.”

“When lawmakers even entertain this kind of legislation,” she tells us, “they essentially give it some level of credibility, in attempts to be perceived as balanced, which is really dangerous. We don’t want those kinds of bills given committee hearings because all you’re doing is you’re giving them a platform to spread misinformation. When you do that, it is hard to repair the damage done because the cat’s already out of the bag.”

“In February and March of 2020,” Lakshmanan recalled during a panel discussion at the BIO Patient and Health Advocacy Summit in October, “many of us thought, ‘This is what it’s’ like to live through a global health crisis and not have a vaccine to help us get out of it. Surely this will spur a lot of advocacy and a new appreciation for the value of vaccines.’”

Yet the opposite became true as anti-vaccine communities gained strength during the pandemic. Dobbs v. Jackson further fueled the fire.

Looking forward, vaccine advocates know they will have to double, if not triple, efforts to support vaccine-positive legislation—and make sure the public gets the information they need.

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