This week, the Supreme Court appropriately declined to hear an appeal of a 2nd Circuit decision upholding the right of the state to require vaccination as a condition of enrollment in public schools, and to exclude exempted children from attending school during an infectious disease outbreak.
Under the Constitution, states have police power to protect the public’s health, welfare, and safety. A long-standing use of this authority is to protect communities from risks related to vaccine-preventable illnesses. In addition, when an infectious-disease outbreak occurs, states may use their police power to interrupt further transmission of the disease by restricting the movement of individuals. All states have incorporated this concept of social distancing into their school immunization laws. Schools can prohibit an unvaccinated child, who is more susceptible to acquiring highly infectious vaccine-preventable illness and more likely to become a carrier and vector for it, from coming to school until the danger subsides. Such measures, coupled with ready availability of vaccines, reduce the potential spread of serious disease in a vulnerable and tightly packed community.
In the recent case, Phillips v. City of New York, New York’s social distancing policy was challenged after the children of two families with religiously grounded vaccination exemptions were excluded from school for a period of time after a fellow student tested positive for chickenpox. Finding the vaccine policy “well within the State’s police power,” the Second Circuit Court reiterated the Supreme Court decision in the 1905 case Jacobson v. Massachusetts, which clearly found vaccine mandates constitutional. The court also cited the Supreme Court decision in a 1944 case, Prince v. Massachusetts, which supported limits to religious freedom if an individual’s expression of liberty risked putting his or her child or the community at risk for harm or ill health.
The scope of state public health laws, and stateimmunization policies in particular, may continue to be challenged. However, the Phillips case, with its focus on a core First Amendment right and a relatively mild vaccine-preventable illness, affirms the long-held axiom that the state can use its police power in ways that supersede religious and parental preferences, and somewhat burden individuals, to uphold our societal responsibility to use reasonable measures to protect against infectious-disease outbreaks.
Language from the Prince v. Massachusetts case sums up well a legislature’s right to draw upon the police power and parens patriae to prioritize important community needs, rather than be faced with having to rely upon every family in the community appropriately exercising its individual rights to achieve public health protection (cites omitted):
But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s wellbeing, the state, as parens patriae, may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare, and that this includes, to some extent, matters of conscience and religious conviction.
Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.
While legal challenges to vaccine policy are certain to continue in the months ahead — I don’t believe we’ve heard the last from California or Vermont — opponents of childhood immunization mandates will likely continue to be thwarted in the courts so long as legislatures continue to appropriately prioritize the public’s health.