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Herb Rothschild Jr.: Right to know and intelligent lawmaking

Last week I reflected on the right to know, which isn’t a constitutional guarantee but which legislators have mandated in various situations, such as open records laws. And I noted that while some such mandates are non-controversial, others aren’t. As an example of the latter I cited the requirement in half our states that abortion providers give information to their clients that might dissuade them from going through with the procedure. Then I went some way in exploring the criteria legislators might use to decide when to mandate a Right to Know, and promised to go farther this week by using as a test case SB 649, the attempt during the recent Oregon legislative session to require doctors to give patients the Centers for Disease Control’s (CDC) excipient list for each vaccine they offer. So here goes.

Excipients aren’t the main ingredients of vaccines — the weakened or killed disease viruses or bacteria that stimulate our immune systems to develop antibodies in advance of exposure to the diseases themselves. Rather, some excipients are small amounts of other ingredients added to the vaccines for various purposes: preservatives to prevent contamination, adjuvants to help stimulate a stronger immune response, and stabilizers to keep the vaccine potent during transportation and storage. Other excipients are residual trace amounts of substances used during the manufacturing process and then removed from the vaccines.

Information about excipients isn’t kept from the public. A table listing them can easily be found on the CDC website. Here’s an example of what you’ll find there: One of the available Hepatitus B vaccines contains yeast protein, yeast DNA, deoxycholate, phosphorothioate-linked oligodeoxynucleotide, sodium phosphate, dibasic dodecahydrate, sodium chloride, monobasic dehydrate, and polysorbate 80.

Would that information help you decide whether to take that vaccine? How could it? Aside from yeast protein and sodium chloride, I doubt if those ingredients mean any more to you than to me. Nor are the quantities listed, and even if they were, do you know how much of each of those excipients (if any) might impair your health? You might be frightened by seeing formaldehyde listed among the excipients for some vaccines, but do you know that your body must produce formaldehyde for cell metabolism, and if you do, do you know how much?

Surely one criterion for deciding whether to impose a legal burden on manufacturers or service providers to transmit information is whether it will help the recipients make an informed choice. And if it won’t, then is the motive behind the mandate another criterion? If the motive is to influence people’s choice by confusing them, doesn’t that motive subvert the primary purpose of the right to know?

When I told a sponsor of SB 649 that the information on the CDC’s excipient lists couldn’t be helpful, he said that for legislators to decide what information is and isn’t helpful would lead them down a slippery slope. But lawmakers aren’t going to mandate an unrequested disclosure of everything connected with every product or service. That would be wildly impractical. And I doubt if this lawmaker would vote to require Oregon’s abortion providers to give their clients information about fetal development and adoption services in furtherance of their right to know. As I asserted in my June 23 column when I discussed the much-abused “slippery slope” argument, making distinctions is inherent in lawmaking. The challenge is to make intellectually and morally sound ones.

Herb Rothschild’s column appears in the Ashland Tidings every Saturday.

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