21st Century Jacobson vs. Mass

iVillage Member
Registered: 10-18-2007
21st Century Jacobson vs. Mass
Sun, 07-27-2008 - 4:41pm



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.


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



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.

iVillage Member
Registered: 11-07-2007
Sun, 07-27-2008 - 5:56pm

So, even though I can teach my (future) daughter to avoid sex until she is old enough to have safe and responsible sex, "they" still think I should be forced to vaccinate my child with a vaccine that has a multitude of severe side effects and little information on long term affects (such as fertility issues).

Gee, thanks.


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iVillage Member
Registered: 12-14-2005
Mon, 07-28-2008 - 10:45am

My eyes started rolling at "medical necessity."


iVillage Member
Registered: 10-18-2007
Mon, 07-28-2008 - 1:06pm

"Those vaccines classified as “medically necessary” would be those that are the only known viable defenses against diseases taking hold in a community..."

First, it would have to be proven - this is the fundamental problem with simply measuring the immunogenicty of an antigen.

iVillage Member
Registered: 12-14-2005
Mon, 07-28-2008 - 1:52pm

Yup the exact reason for my eye roll.

Like the blinkie :)

iVillage Member
Registered: 04-09-2008
Tue, 07-29-2008 - 8:09am

Given that Gostin is the author to MSHEPA I'm guessing to assume he follows the same logic as Bush that the constitution is just a damn piece of paper.