Anthony Albanese
COL ’16
Introduction
Vaccines have become a staple of public health interventions over the past century. Epidemics from smallpox to the measles have been stifled through compulsory vaccination. Yet the anti-vaccination movement is the strongest it has ever been. 48 of 50 states have carved out some sort of exemption to mandatory vaccination, whether it is philosophical, medical, religious, or some combination of the three.[1] The result is a serious public health threat. Herd immunity requires up to 94% vaccination rate for a disease such as measles.[2] Given the relatively low percent of people who file for exemptions, herd immunity could remain intact despite these opt-out laws. However, many of the people who tend to file these exemptions also tend to live near each other. This in turn creates communities that are dangerously below the threshold for immunity. Recently, in California—the poster child for this phenomenon—99 cases of measles have popped up via an infection at Disneyland. This is the highest infection rate for measles in twenty years.[3]
The issue could be tackled solely in the political realm. Exemptions can be removed just as easily as they are created, yet the unlikely alliance between liberal-leaning naturopaths and conservative religious groups, as well as libertarians who argue that mandatory vaccination is a violation of personal freedom, has made change difficult. Politicians have declined to take a strong stance on mandatory vaccinations. Presidential hopeful Rand Paul recently stated, “I don’t think there is anything extraordinary about resorting to freedom….The state doesn’t own your children. Parents own the children. And it is an issue of freedom and public health.”[4] Paul is a graduate of medical school, so the fact that he has taken this stance emphasizes that the political calculus of taking a stand against the anti-vaccination movement simply does not work out to be positive.
This has left a significant portion of the fight against the anti-vaccination movement to play out in court. An analysis of past precedent involving vaccines is essential to understanding what challenges to compulsory vaccination have been thwarted, and what legal options are available to fight the anti-vaccination movement today.
Supreme Court Precedent — Conflicting Principles
The main source of precedent relating to vaccines comes from the Supreme Court’s decision in the 1905 case of Jacobson v. Massachusetts. This took place before the time of exemptions of any sort, and challenged the principle of compulsory vaccination at its core. Chief Justice Harlan’s majority opinion asserted the idea that such mandates fell under the states’ police powers. Even in 1905, Harlan understood the public health threat that arises when people refuse to vaccinate. He argued that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”[5] This is a ringing endorsement of the social compact in public health, and a rejection of the “freedom” argument of anti-vaccination advocates.
The decision in this case had two effects. First, it essentially ended challenges to the constitutionality of mandatory vaccination. It also galvanized the anti-vaccination movement. The Anti-Vaccination League of America was founded not three years later.[6] Pressures from these types of groups were the cause of the prominence of exemptions, and therefore opened the door to future legal challenges.
Pierce v. Society of Sisters, while not directly involving vaccinations, provides an important precedent that plays well with the anti-vaccination argument. See the following from the majority:
“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”[7]
Simply put, in Pierce, the Court made a powerful assertion that parents have a general right to raise their children as they please. This is pertinent considering that vaccinations today are primarily spread through mandatory vaccination of children as a condition to enter school. The principle established in Pierce is one that rings true with liberal naturopaths and conservatives alike.
Prima facie, these cases may seem unrelated. Upon closer inspection, one can see a conflict in court doctrine between upholding the right of the parent to rear their own children, and asserting the ability of the state to intrude via its police powers for the sake of the common good.[8] Primarily, the argument of the state has been favored by the Court. For example, in Prince v. Society of Sisters (1944), it was made clear that the states have some significant power to intervene over parental will for the well-being of the child—even to the point where religious freedoms are restrained.[9] Still, the logic in Pierce is one that resonates with anti-vaccination arguments.
Current Challenges: Who’s winning?
While Pierce has arguably been the more significant case in terms of overall influence, Jacobson has ruled in the realm of vaccinations. In the most recent challenge of Philips v. City of New York, the US Court of Appeals of the 2nd Circuit upheld the right of schools to bar unvaccinated children from school if another student contracts a disease preventable by vaccine—even if the child has received an exemption. The precedent invoked was none other than Jacobson. Further, the Court asserted that New York could constitutionally mandate all vaccinations, and that the allowance of an exemption is above and beyond what is required by the Constitution.
It is clear that the sentiment of Pierce factored into the plaintiff’s argument. As the makeup of the high courts change, it’s foreseeable that this argument could become more favorable in the courtroom. While it is an uncommon occurrence for the Court to completely overturn precedent, there have been many times when doctrines have been loosened and expanded, such as the applicability of the Commerce Clause. It is especially prudent to consider that rulings against vaccine critics will only further galvanize the movement, as it did in 1905 after Jacobson. Indeed, the appeals will not simply cease overnight. According to the New York Times, Philips is already looking to appeal to the Supreme Court.[10]
What’s Next? Options in Tort Law and the NFIB Decision
From the previous analysis, it’s clear that the courts have built a strong first defense against those who refuse to be vaccinated in championing the police powers of the states. On the other hand, these same police powers are what allow anti-vaccination organizations to lobby for exemptions. A second line of defense is now necessary. How can the courts, in tandem with policymakers, further efforts to raise vaccination rates?
One option involves tort law. If one could trace back the contraction of a preventable disease to someone who wasn’t vaccinated, they could be sued for damages. Anthony Ciolli, faculty at the University of Pennsylvania Law and Medical Schools, notes that this method would be particularly useful regarding HPV vaccination.[11] Since HPV is translated sexually, it could be traced back to a specific partner. Ciolli argues that the use of tort law in the realm of vaccines could be a significant deterrent to filing for exemptions, as people fear high costs of liability. Yet, not all agree with this assessment. Ross Silverman of Indiana University speculates that the application of tort law would have quite the opposite effect. According to Silverman, not only would it not increase vaccination rates, but would also undermine faith in the public health system and trigger further polarization of the pro and anti-vaccine camps.[12] No matter which assessment is right, one thing is clear: the tort approach has little application in regard to most diseases. Tracing a case of measles, which can spread through the air, is much more difficult and far less practical.
In the wake of NFIB v. Sebelius, another option seems to have emerged. The majority opinion, in interpreting the individual mandate as a tax on inactivity as opposed to a penalty, has opened up a new legislative avenue for regulating health policy.[13] If the government can mandate that all individuals buy health insurance or face a tax, it doesn’t seem too hard to believe that the federal government could legitimately create a similar mandate for vaccinations. Little commentary has been made regarding this possibility, most likely because the doctrine passed down in NFIB is still rather untested. Unfortunately, there would need to be some political movement for this to become a realistic possibility, and as the aforementioned comments by Rand Paul demonstrate, there is currently little political will. However, the same argument could have been made about health care reform prior to 2009. If the stars align and vaccine policy reform reaches the national agenda, it is possible given the decision in NFIB that a federal mandate could be upheld in court.
Despite the challenges of these proposals, the significance of the role of the court system is clear. Upholding mandatory vaccinations under the police powers over the past century has been crucial in ensuring broad vaccination against preventable disease. Fighting exemptions, however, will require more nuanced legal approaches. How the courts deal with the legacy of NFIB, and whether tort law can successfully be applied will be the next important determinants in improving vaccination rates—and as a result, public health.
Notes
[1] Mariano Castillo, What vaccination exemptions does your state allow? CNN (2015), http://www.cnn.com/2015/02/03/health/vaccination-exemptions-state-by-state/.
[2] Jonathan Cohn, Rand Paul’s Vaccine Comments Are Latest Chapter In 136-Year-Old Debate Huffpost Politics, http://www.huffingtonpost.com/2015/02/03/rand-paul-vaccination_n_6604498.html.
[3] Lisa Krieger & Jessica Calefati, Measles outbreak: vaccination exemption would end under proposed California law San Jose Mercury News (2015), http://www.mercurynews.com/health/ci_27458564/measles-california-outbreak-vaccination-exemption-religious-belief.
[4] See Cohn, supra at note 2.
[5] Jacobson v. Massachusetts, 197 U.S. 11, (1905)
[6] Toward a Twenty-First Century Jacobson v. Massachusetts, 121 Harvard Law Review 1820–1841 (2008).
[7] Pierce v. Society of Sisters, 268 U.S. 510, (1925)
[8] Jonathan Cohn, Rand Paul’s Vaccine Comments Are Latest Chapter In 136-Year-Old Debate Huffpost Politics, http://www.huffingtonpost.com/2015/02/03/rand-paul-vaccination_n_6604498.html.
[9] Prince v. Massachusetts, 321 U.S. 158, (1944)
[10] Patrick McGeehan, New York Vaccine Requirement Is Lawful, a 2nd Court Says The New York Times (2015), http://www.nytimes.com/2015/01/08/nyregion/state-vaccine-requirement-is-lawful-a-2nd-court-says.html?_r=0.
[11] Anthony Ciolli, Mandatory School Vaccinations: The Role of Tort Law, 81 Yale Journal of Biology and Medicine 129–137 (2008).
[12] Noah Berlatsky, Fighting the Anti-Vax Movement With Lawsuits The Atlantic (2015), http://www.theatlantic.com/health/archive/2015/02/fighting-the-anti-vax-movement-with-lawsuits/385130/.
[13] National Federation of Business v. Sebelius, 567 U.S. ___, (2012)
