Vaccination Legislation: Individual Freedom v. Public Safety

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Despite recent victories at the battles of Trenton and Princeton in January, the Continental Army led by George Washington was in a deplorable state at the start of the winter season in 1777. Ravaged by smallpox, a once common, debilitating and often fatal disease to the American colonists, nearly a quarter of Continental regulars were unfit for duty and threatened to spread the disease to the rest of the army. Due to fears of mass contamination, puritan skepticism and concerns over the practicality of temporarily incapacitating the bulk of America’s army ahead of the 1776 campaigning season, the Continental Congress had earlier issued a proclamation prohibiting the practice of inoculation, by which Washington abided. However, with the army in winter quarters and with smallpox becoming an increasingly severe threat to the wellbeing of the Continental Army, on Feb. 5, 1777 Washington began the first mass inoculation program which, while causing minor casualties, greatly reduced attrition by disease and contributed to the success of American campaigns in 1777 and beyond.

The story of inoculation during the American Revolution is important to understand because it calls attention to the fact that for as long as America has existed as a nation there has been fervent debate over the merits of vaccination and the government’s authority to mandate its treatment to the public. Indeed, nearly 250 years later the debate over vaccinations has been rekindled over new efforts by various state governments to either eliminate or strengthen their religious and personal exemptions to mandatory vaccination programs. Furthermore, like most hot button issues in American politics today, the two sides of the vaccination debate have taken on partisan undertones with liberals supporting the elimination of exemptions that they believe put the public body at risk and with conservatives opposing these efforts that they deem to be harmful invasions of religious and personal liberties that have the potential of causing individual bodily harm.

The partisanship that has taken hold of the issue accentuates the fact that at its core the vaccination debate is about determining the veritable role of government, that is, whether it is instituted to protect and promote the public welfare or to ensure private constitutional freedoms. As such, much like universal healthcare, environmental regulation and gun-control policies, understanding the dynamics of the vaccination debate involves examining the scientific and constitutional arguments of both parties and the rationale behind their conception of government responsibility.

The Current State of Affairs and the Flash-points in the Modern Vaccination Debate

The modern context of mandatory vaccination policies in the United States differs from that in 1777 in two major ways. First, in contemporary times adults are not generally subjected to mandatory inoculation policies. Rather, vaccinations are a prerequisite to attendance at public schools and as such primarily affect children (and in some cases young adults attending college). Second, every state in America requires that children receive vaccines, in some cases multiple times at successive stages from kindergarten to high school graduation. Since over 90 percent of American children attend public-education institutions, requiring that children be vaccinated before and during their attendance at public schools enables states to ensure that a majority of their populations receive immunizing vaccines that protect them from dangerous contagious diseases either for life (e.g., Measles vaccine) or at least during their formative years (e.g., Varicella vaccine).

The recent resurgence in large scale outbreaks of traditionally contained diseases such as measles and rare illnesses resembling polio (eradicated in the U.S. in 1979) has brought the issue of mandatory vaccine enforcement back into the political spotlight. Specifically, various states have pushed to curb the religious and personal exemptions to mandatory vaccination policies that they argue provide the means for parents to resist efforts to vaccinate their children. While all states require the average school-child to receive a plethora of vaccinations, three categories of exemptions - medical, religious and personal - exist which enable parents to apply for waivers in order to avoid vaccinating their child. Medical exemptions enable children to circumvent the vaccination requirements provided that they possess a medical condition (attested to by a doctor) that make vaccines harmful to receive. Similarly, religious and personal exemptions allow children to attend school without having received their vaccines provided that they belong to a religious sect or denomination to which vaccination is forbidden or if their personal moral principals oppose vaccination.

As of 2019, all fifty states provide for a medical exemption to mandatory vaccination. However, only forty-seven allow for a religious exemption and only seventeen permit an exemption on personal or philosophical grounds. Interestingly, while the debate among individuals may have taken partisan undertones, the state statutes surrounding the various exemptions display less ideological division. For instance, the three states that forbid religious exemptions are California (liberal), Mississippi and West Virginia (conservative). Furthermore, the often vague personal exemption is permitted in states ranging from the conservative South to the traditionally liberal Northwest. Regardless of ideological preponderance, states across America are rallying in support or opposition of the non-medical exemptions with “lawmakers hav[ing] introduced more than 130 vaccine-related bills in over 30 states.

Medical Science and the Misconceptions Surrounding Vaccination

Being a facet of the medical sciences, both supporters and detractors point to arguments made within the medical field to advance their position. Supporters defend vaccines by asserting that they are not only safe to receive but help save the lives of recipients and the greater community. Modern vaccines are largely accepted to be safe for recipients and consistently demonstrate immunity in over 92-95 percent of cases depending on the vaccine. Furthermore, vaccines are credited with eradicating once pervasive diseases and have been shown to save families considerable money over the course of a child’s life. More important to the argument over mandating vaccinations is the concept of herd immunity which asserts that the larger the proportion of immunized denizens in a community the better able that community is to withstand epidemic diseases. This concept of herd immunity not only limits the adverse effects of diseases but also serves to better insulate those within society that are unable to receive vaccines due to medical reasons, such as pregnant women and individuals with compromised immune systems (e.g., HIV/AIDS).

While it is generally accepted that vaccination practices have improved since the age of Washington, considerable skepticism, both valid and misconceived, persists around the efficacy and safety of these treatments. Concerns over the CDC recommended a number of vaccines for infants (over 20) and the general effectiveness of vaccines that merely confer temporary immunity have made many parents vocal opponents of mandatory treatments. Similarly, worries over vaccine side-effects and the unfounded scare over the link between vaccination and autism which has since been debunked, with the original medical researcher having been struck off the UK’s medical register due to “serious professional misconduct,” have also been used as scientific fodder for the so-called “anti-Vaxxers.”

The Constitutional Interpretation and the Legal Approach to Mandatory Vaccinations

Perhaps more significant than the scientific arguments are the legal reasons given for striking down or propping up the religious and personal exemptions to mandatory vaccinations. Returning to the question of the fundamental role of government in respect to protecting and promoting the public welfare v. ensuring private constitutional freedoms, vaccines offer a unique conundrum that calls into question the limits of state power over individual freedom. Supporters of mandatory vaccination argue that the Constitution’s preamble (i.e., “promote the general Welfare”) and 10th Amendment (i.e., the states’ “police power”) permit states to impose mandatory vaccination treatments in order to ensure adequate standards of public health. Conversely, proponents of the religious and personal exemptions base their constitutional arguments on the 1st (i.e., Freedom of Religion) and 14th (i.e., due process) Amendments’ protections of religious and individual freedom, respectively.

The only significant Supreme Court precedent regarding vaccines is Jacobson v. Massachusetts (1905) in which the Court ruled that the states’ police power empowered them to impose reasonable regulations on personal liberties when “it is necessary for the public health or [when public] safety shall require [it].” In this landmark vaccination case which has not since been revisited, the Court argued that the state possesses the prerogative to mandate vaccinations even if the treatments are not universally accepted as effective so long as they are believed to be effective and not done in an arbitrary or discriminatory fashion. When further expanded upon with the Supreme Court ruling in Bruesewitz v. Wyeth (2011), in which the Court determined that U.S. law understood vaccines as being “unavoidably unsafe” (i.e., unable to be made more safe without defeating the purpose of the product), it can be reasonably stated that states possess the legal ability to mandate vaccines even if they have a chance of producing serious side effects.

While judicial precedent and current U.S. law may indeed sanction mandatory vaccinations and, by extension, permit the removal of states’ religious and personal exemptions, the outdated precedent of Jacobson v. Massachusetts can serve to augment pro-exemption arguments. Indeed, while Jacobson dealt with a serious and deadly smallpox epidemic in turn of the century Massachusetts, the lack of severity of the diseases prevented by some vaccines today could be a cause to revisit the standing judicial approach to mandatory vaccination. Central to this argument is the distinction between “medical necessity” and “practical necessity,” where vaccination is understood to be the only conceivable remedy to some diseases and thereby constituting a “medical necessity.” However, many vaccines required today cover diseases such as HPV and Hepatitis B, both of which are easily preventable without vaccinations (e.g., protected sex). As such, legal theory may not extend Jacobson to these vaccines and may provide anti-Vaxxers with legal standing to contest the states’ absolute prerogative over mandatory vaccinations.