[retweet]Jacobson v. Massachusetts and the mandatory smallpox vaccinations of Cambridge, Massachusetts have commonly been used to justify mandatory vaccination polices when the vaccine is essential to the safety and health of the community. Jacobson v. Massachusetts, 197 U.S. 11, 11 (1905). However, with the advances in biotechnology since 1905 some believe the ruling in Jacobson may be out of touch with modern issues, such as the Human Papilloma Virus (HPV) vaccine. Therefore, in order to reconcile and update Jacobson, two main theories have been presented to narrow the term “essential” and define it in a modern context, including medical and practical necessity, and a modified hand rule. Consequently, these theories may limit the ability of the government to impose mandatory vaccinations in cases without clear medical benefits and therefore affect the Government’s ability to respond to or mitigate a bioterrorist attack.
In Jacobson v. Massachusetts, the U.S. Supreme Court held that an individual’s rights and liberties are not absolute and the mandatory vaccination regulation brought under Massachusetts’ state statutes was constitutional. Id. at 39. Jacobson appealed after having a criminal complaint brought against him in the lower courts of Massachusetts for not consenting to a smallpox vaccination, as mandated by the city of Cambridge, Massachusetts. Id. at 13. In his appeal, Jacobson claimed that the regulation passed by the board of health for the city of Cambridge was a violation of his 14th amendment rights. On this appeal, the U.S. Supreme Court held that “[t]he possession and enjoyment of all rights are subject to such reasonable
conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.” Id. at 26-27. Based on this holding, the court found that the mandatory vaccination clause was constitutional because it is essential to the safety and health of the community.
The HPV vaccine, and the potential for a mandatory HPV vaccination, has been the center of much debate and has caused many people to reexamine what is needed in a vaccine to allow it to be essential to the safety and health of the community. HPV is an STD which over twenty million Americans have contracted and over 50% of sexually active people will contract in their lifetime. Additionally, HPV has been linked to multiple forms of cancer, including cervical cancer and oropharynx cancer. Id. The HPV vaccine aims to prevent transmission by vaccinating people before they contract the STD; however, the necessity of the vaccine has been challenged on the fact that transmission can be prevented through the practice of abstinence or safe sex. See Benjamin Lemke, Why Mandatory Vaccination of Males against HPV is Unconstitutional: Offering a New Approach To an Old Problem, 19 B.U. Pub. Int. L.J. 261, 261-63 (2010). It is this potential for alternative preventative measures that allows for a closer analysis to determine to what extend HPV is essential.
One method was explained in an unsigned note in the Harvard Law Review, where the term “essential” from Jacobson was broken into medical necessity and practical necessity. Note, Toward a Twenty-First-Century, 121 Harv. L. Rev. 1820, 1838 (2008). Under this doctrine, medical necessity would only be for vaccines which if one person abstained from vaccination they would present a risk to the community. Id. at 1838. Conversely, if the vaccine would only protect from a non-contagious diseases it would not be essential. Id. Therefore, if a vaccine was not medically necessary to prevent the spread of disease, but only practically necessary to decrease the occurrence of a disease then it would be unconstitutional to mandate vaccination. Id. at 1841.
Additionally, in the Boston University Public Interest Law Journal, Lemke introduces a modified Hand Formula to determine the constitutionality of a mandated vaccine program for a particular disease. 19 B.U. Pub. Int. L.J. at 277. The formula compares the burden of the vaccine program (B) with the probable loss of not implementing the program (P x L). See Id. at 277. Under this method, the burden (B) would represent the economic burden of the program, the potential negative health effects of the vaccine, and the impact to individual rights. The probable loss without the program (P x L) would represent the number of lives likely to be saved and the prevention of non-lethal health issues, reduced by a factor to represent the effectiveness of the vaccine and the availability of other preventative measures. Id. at 278. If, in consideration of all these variables, the burden (B) should outweigh the probable loss (P x L) then the vaccine is not essential and mandatory vaccination would be unconstitutional. Id.
While both of these methods are intended to protect civil liberties and public health and safety, the burden they would place on the courts would frustrate two of the benefits of vaccines: mitigation of, and response to bioterrorism. These methods would likely become difficult to apply in the context of bioterrorism, where the relevant medical benefits could shift along with intelligence and military data of terrorist activities. Therefore, when deciding if a vaccine is essential, a court would have to hear testimony not just from doctors, but also from government officials on matters which are potentially classified or sensitive.
Also, the context of bioterrorism presents issues with the standard disease paradigm. Weaponized versions of diseases for which effective vaccines exist may render the vaccine ineffective, or may present as a common infection only to become greatly amplified later. For example, tuberculosis is not commonly vaccinated against in the United States since tuberculosis has a history of being treatable with antibiotics and the vaccine is not 100% effective. However, a weaponized version of tuberculosis which is designed to evade modern antibiotics would have a drastically different risk profile. Although doctors may be able to understand and present this adjusted risk to the court, the information may not be conclusive enough to persuade the court until after a bioterrorism event. Therefore, the time available for public health and national security officials to mitigate the risk of, or respond quickly to the event may be greatly diminished by the increased requirements on mandatory vaccinations.
Finally, it seems clear that the rule set forth by Jacobson is due for an update. However, an update which choses to focus only on the advances in biotechnology in the realm of vaccine production would do a disservice to public health and safety. Although it is unclear what the best method to modernize the Jacobson ruling, a true modernization would be incomplete without the consideration of its impact on bioterrorism and national security.