Jacobson v Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law Give

Jacobson v Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law

Given the changes in constitutional law, public health, and government regulation, what kinds of public health laws that address contagious diseases might be constitutionally permissible today? A law that authorizes mandatory vaccination during an epidemic of a lethal disease, with refusal punishable by a monetary penalty, like the one at issue in Jacobson, would undoubtedly be found constitutional under the low constitutional test of “rationality review.” However, the vaccine would have to be approved by the FDA as safe and effective, and the law would have to require exceptions for those who have contraindications to the vaccine. A law that authorizes mandatory vaccination to prevent dangerous contagious diseases in the absence of an epidemic, such as the school immunization requirement summarily upheld in 1922, also would probably be upheld as long as (1) the disease still exists in the population where it can spread and cause serious injury to those infected, and (2) a safe and effective vaccine could prevent transmission to others.

The legitimacy of compulsory vaccination programs depends on both scientific factors and constitutional limits. Scientific factors include the prevalence, incidence, and severity of the contagious disease; the mode of transmission; the safety and effectiveness of any vaccine in preventing transmission; and the nature of any available treatment. Constitutional limits include protection against unjustified bodily intrusions, such as forcible vaccination of individuals at risk for adverse reactions, and physical restraints and unreasonable penalties for refusal.