21st Century Jacobson vs. Mass

iVillage Member
Registered: 10-18-2007
21st Century Jacobson vs. Mass
5
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


concludes.


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.


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."

Sigh.






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.


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