21st Century Jacobson vs. Mass
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|Sun, 07-27-2008 - 4:41pm|
TOWARD A TWENTY-FIRST-CENTURY
JACOBSON V. MASSACHUSETTS
Biomedical advances are pushing the foundational public health
law case Jacobson v. Massachusetts1 towards obsolescence. The 1905
Supreme Court decision established the constitutionality of state compulsory
vaccination laws when they are “necessary for the public
health or the public safety.”2 But the case addressed issues of medicine,
disease, and society that are increasingly irrelevant. Jacobson’s
rationale has little to say about two recently developed controversial
vaccines — the hepatitis B vaccine and the human papillomavirus
(HPV) vaccine — and it will likely have even less to say about vaccines
that are still in the pipeline. These vaccines are qualitatively different
from their predecessors in that they are not medically essential
to preventing the spread of disease. Vaccine law and policy —
whether through common law, statutes, or agency directives — must
develop clear ways to recognize these distinctions.
This Note suggests that vaccine law distinguish between two kinds
of necessity — what this Note calls “medical necessity” and “practical
necessity.” Those vaccines classified as “medically necessary” would
be those that are the only known viable defenses against diseases taking
hold in a community. “Practically necessary” vaccines are those to
which there are alternatives, but which alternatives are, in practice,
not used by a significant number of people.
For example, Jacobson involved compulsory vaccination in the
midst of a smallpox epidemic when there was no other less coercive
means available to staunch the outbreak. In this situation, vaccination
was a medical necessity to combat the disease. On the other hand, for
sexually transmitted diseases (STDs) like HPV, compulsory vaccination
is not a medical necessity because individuals can protect themselves
through some combination of sexual knowledge, disease screening, safe
sex, and abstinence. But vaccination may still be necessary in practice
if people do not take adequate precautions, and legally compelled immunization
is the only practical way to combat the disease effectively.
Of course, the line between medical and practical necessity will not
always be clear. Nonetheless, creating such a classification can still
prove a useful device for sorting among vaccines that combat diseases
that are different in the ways that they are spread.
This Note does not argue that courts should find compulsory vaccination
against STDs or similar diseases unconstitutional. Indeed, as
discussed below, there are strong arguments that compulsory vaccina-
1 197 U.S. 11 (1905).
2 Id. at 27.
2008] A TWENTY-FIRST-CENTURY JACOBSON V. MASSACHUSETTS 1821
tion against HPV may be justified. Rather, this Note’s primary claim
is that vaccine law must be updated — whether by courts, legislators,
or expert bureaucrats — to respond better to future biomedical advances.
Amazingly powerful medicines and vaccines are in the pipeline,
and these new drugs will not fit into the old paradigm of responding
only to airborne infectious diseases such as smallpox, polio, and
measles. New legal understandings must keep pace with these breakthroughs.
Updating vaccine law to distinguish between two degrees of
necessity, and thus better accounting for vaccines like those against
HPV and hepatitis B, is an important early step in that process.
This Note proceeds as follows. Part I presents the Jacobson decision,
emphasizing the social and medical context in which it was decided.
Part II examines recent developments in vaccine law and policy,
focusing on the introduction of the hepatitis B and HPV vaccines.
Part III evaluates two competing views of Jacobson’s legacy by public
health law Professors Lawrence Gostin and George Annas. It then
presents the novel argument that modern vaccine law should recognize
a distinction between medically necessary vaccines and practically
necessary vaccines. Presently, new vaccine mandates are presumed
constitutionally valid under Jacobson, even when the vaccines combat
diseases that are not airborne and from which individuals have some
other recourse to protect themselves. Recognizing the proposed distinction
would allow state and federal policymakers and courts to balance
more precisely civil liberty and public health needs. Part IV
I. JACOBSON V. MASSACHUSETTS
Jacobson is a foundational public health law case. Its reasoning
and logic pervade vaccine law decisions to this day. But as this Part
shows, Jacobson was decided in a different time. It addressed issues
about medicine, disease, and society that are no longer relevant today.