Mandatory Vaccinations: Precedent and Current Laws
Released: 2014-05-21T00:00:00

History and Precedent

At the end of the 20 th century, the Centers for Disease Control and Prevention (CDC) published its list of the "Ten Great Public Health Achievements" for the United States from 1900 to 1999. Number one on the list was vaccination. Vaccination has resulted in the eradication of smallpox worldwide, and in the control of many other vaccine-preventable diseases. Mandatory vaccination programs, such as school immunization requirements, have played a major role in controlling rates of vaccine-preventable diseases in the United States.

Historically, the preservation of the public health has been the primary responsibility of state and local governments, and the authority to enact laws relevant to the protection of the public health derives from the state's general police powers. With respect to the preservation of the public health in cases of communicable disease outbreaks, these powers may include the institution of measures such as quarantine and isolation or the enactment of mandatory vaccination laws. Mandatory vaccination laws were first enacted in the early 19 th century, beginning with Massachusetts' smallpox vaccination law in 1809.

Jacobson v. Massachusetts is the seminal case regarding a state or municipality's authority to institute a mandatory vaccination program as an exercise of its police powers. In Jacobson , the Supreme Court upheld a Massachusetts law that gave municipal boards of health the authority to require the vaccination of persons over the age of 21 against smallpox, and determined that the vaccination program instituted in the city of Cambridge had "a real and substantial relation to the protection of the public health and safety." In upholding the law, the Court noted that "the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety." The Court added that such laws were within the full discretion of the state, and that federal powers with respect to such laws extended only to ensure that the state laws did not "contravene the Constitution of the United States or infringe any right granted or secured by that instrument."

The Court addressed constitutional concerns raised by the petitioner in Jacobson , but remained unconvinced that his rights were "contravened" by the mandatory vaccination program. The petitioner argued that "a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person." The Court rejected the petitioner's constitutional challenge and noted that "the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person, to be, at all times and in all circumstances wholly free from restraint." However, the Court did acknowledge limits to the state's power to protect the public health and set forth a reasonableness test for public health measures:

[I]t might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.

State Mandatory Vaccination Laws

School Vaccination Requirements

Every state and the District of Columbia has a law requiring children entering school to provide documentation that they have met the state immunization requirements. In 1827, Boston was the first city to require vaccination against smallpox for public school students. Other cities and states adopted the policy, and state statutes were amended as new vaccines were introduced.

Many modern school vaccination laws are the result of measles outbreaks in the 1960s and 1970s. Generally, states use the Centers for Disease Control and Prevention's schedule of immunizations as a guide, and require children to be vaccinated against a number of diseases on the schedule, including diphtheria, measles, rubella, and polio. Various state laws also require vaccination against hepatitis B and meningococcal disease for incoming college and university students. In addition, Virginia and the District of Columbia require female students to be vaccinated against the Human Papillomavirus (HPV). Recently, some states and cities have begun requiring young children in preschool or daycare to receive influenza vaccinations.

Despite the wide-spread imposition of school vaccination requirements, many states provide exemptions for medical, religious, or philosophical reasons. These provisions vary state by state, with medical exemptions for children who may suffer adverse effects from the vaccine being the most common. Thus, all states allow medical exemptions for those whose immune systems are compromised, who are allergic to vaccines, are ill at the time of vaccination, or have other medical contraindications to vaccines. Generally, for a medical exemption, parents or guardians must provide documentation from a physician. Nearly all states grant exemptions for persons who oppose immunizations for religious reasons. Exemptions based on philosophical or moral convictions in opposition to immunization are less common but are provided by 19 states. Some states specify that religious or philosophical beliefs be "sincere" or "conscientiously held." The statutes allowing religious exemptions vary, with some requiring only a statement of dissent from the student, parent, or guardian, and others requiring a more specific statement regarding the child's membership in a religious denomination that opposes immunizations. In addition, states that require the HPV vaccination offer broad opt-outs for parents who simply apprise themselves of HPV's risks, without a medical exemption or religious objection requirement.

Compulsory vaccination laws as a prerequisite for school enrollment have been the subject of numerous court cases. In Zucht v. King , the Supreme Court upheld a local ordinance requiring vaccinations for schoolchildren. The Court invoked Jacobson for the principle that states may use their police power to require vaccinations, and noted that the ordinance did not bestow "arbitrary power, but only that broad discretion required for the protection of the public health." In turn, most lower courts have given considerable deference to the use of the states' police power to require immunizations to protect the public health. For example, West Virginia does not offer a religious exemption from school vaccination requirements, but the United States Court of Appeals for the Fourth Circuit has rejected free exercise, equal protection, and substantive due process challenges to the law.

Nonetheless, when states do offer religious exemptions, they generally may not be limited to "recognized religious organizations," as some courts have invalidated such provisions as violating both the Establishment and Free Exercise Clauses. Courts often construe these exemptions broadly, and prevent the state from inquiring into the sincerity of a parent's religious objections. However, some courts have found that certain parents' objections are personal, rather than religious in nature, and have upheld the denial of exemptions on these grounds.

Health Care Workers

A number of states have laws requiring employees of certain health care facilities, such as hospitals and nursing homes, to be vaccinated against diseases such as measles, mumps, and rubella. Such laws, which vary widely, generally contain opt-out provisions where a vaccine is medically contraindicated or if the vaccine is against the individual's religious or philosophical beliefs. A few states have laws pertaining to influenza vaccination of health care workers, and most that do provide for voluntary influenza immunization programs and staff education measures for employees; however, a few states have mandatory requirements for influenza vaccinations for health care workers.

During the 2009 influenza A(H1N1) pandemic, despite an extensive public education campaign, less than half of health care workers were vaccinated against pandemic influenza. In August 2009, the New York State Health Department amended its regulations to require that health care workers at hospitals, in home health care agencies, and in hospice care be immunized against influenza viruses as a precondition to employment and on an annual basis. This regulation, issued on an emergency basis, did not permit any exceptions to the influenza vaccination mandate except for medical contraindications. Lawsuits were filed challenging the regulation's validity, and on October 16, 2009, a state judge issued a temporary restraining order suspending its application to New York health care workers. On October 22, 2009, Governor David A. Paterson announced the suspension of the flu shot mandate for health care employees due to the current shortage of both the seasonal flu vaccine and the pandemic flu vaccine. However, effective July 31, 2013, New York state requires health care workers not immunized against influenza to wear a surgical or procedure mask during times the Health Commissioner determines influenza is prevalent. New Hampshire has a similar requirement which has been challenged under the Due Process Clause in federal district court.

In the private sector, employers sometimes require health care workers to be vaccinated against communicable diseases as a condition of employment, unless a state law applies which permits employees to opt out. A number of professional organizations, including the Infectious Diseases Society of America and the American College of Physicians, endorse the proposition that health care workers have a professional and ethical responsibility to help prevent the spread of infectious pathogens among patients and themselves, and that health care workers should receive annual influenza vaccinations as a condition of employment and professional privileges. In 2004, Virginia Mason Hospital in Seattle, WA, became the first hospital in the nation to make vaccination a condition of employment for all of its employees. Within three years, the hospital reported 98% staff coverage, except for 2% of the staff who refused for medical or religious reasons. Staff who refuse the vaccine are required to wear surgical masks when in the hospital. Other hospitals in the private sector have instituted similar mandatory flu vaccination policies, and some policies have been the subject of lawsuits. News reports have highlighted health care workers fired for refusing to be vaccinated against influenza.

Challenges have been brought to such requirements on several grounds. For example, the Washington State Nurses Association filed suit against Virginia Mason Hospital in 2007 alleging that implementing the mandatory flu vaccination policy without first negotiating with the nurses' union violated the Labor Management Relations Act. The Court of Appeals for the Ninth Circuit upheld an arbitrator's decision prohibiting Virginia Mason Hospital from unilaterally implementing the vaccination policy without bargaining with the nurses' union. In addition, an employee terminated by a children's hospital for refusing to receive an influenza vaccination brought suit alleging religious discrimination in violation of Title VII of the Civil Rights Act. The plaintiff's views were rooted in "veganism," but the judge denied the defendant's summary judgment motion because it was "plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views." Elsewhere, a hospital employee discharged for refusing to take an influenza vaccination filed a claim in South Carolina for unemployment benefits. An administrative board found that the hospital's failure to grant an exemption was unreasonable, but a South Carolina state court of appeals vacated this decision. It explained that "a determination of how to protect patients from life-threatening illnesses such as influenza is a complicated medical and scientific evaluation that should be made by hospitals, not the Department of Employment and Workforce, the ALC, or this court."

In 2008, the Department of Defense (DOD) issued a policy directive requiring "all civilian health care personnel who provide direct patient care in DOD military treatment facilities to be immunized against seasonal influenza infection each year as a condition of employment, unless there is a documented medical or religious reason not to be immunized." The Department of Veterans Affairs has an influenza vaccination program for patients and employees of the Veterans Health Administration that encourages, but does not mandate, yearly influenza vaccinations.

Vaccination Orders During a Public Health Emergency

Many states also have laws providing for mandatory vaccinations during a public health emergency or outbreak of a communicable disease. Generally, the power to order such actions rests with the governor of the state or with a state health officer. For example, a governor may have the power to supplement the state's existing compulsory vaccination programs and institute additional programs in the event of a civil defense emergency period. Or, a state health officer may, upon declaration of a public health emergency, order an individual to be vaccinated "for communicable diseases that have significant morbidity or mortality and present a severe danger to public health." In addition, exemptions may be provided for medical reasons or where objections are based on religion or conscience. However, if a person refuses to be vaccinated, he or she may be quarantined during the public health emergency giving rise to the vaccination order. State statutes may also provide additional authority to permit specified groups of persons to be trained to administer vaccines during an emergency in the event insufficient health care professionals are available for vaccine administration.

Model State Emergency Health Powers Act

In addition to the current laws, many states have considered the provisions set forth in the Model State Emergency Health Powers Act (Model Act). The Model Act was drafted by The Center for Law and the Public's Health at Georgetown and Johns Hopkins Universities. It seeks to "grant public health powers to state and local public health authorities to ensure strong, effective, and timely planning, prevention, and response mechanisms to public health emergencies (including bioterrorism) while also respecting individual rights." It is important to note that this is intended to be a model for states to use in evaluating their emergency response plans; passage of the Model Act in its entirety is not required, so state legislatures may select the entire act, parts of it, or none at all. Many states have used sections of the Model Act while tailoring their statutes and regulations to respond to unique situations that may arise in their jurisdiction.

The Model State Emergency Health Powers Act addresses a number of issues likely to arise during a public health emergency and offers guidelines for states with respect to what powers may be necessary during such an emergency. With respect to vaccinations, the Model Act includes provisions similar to the current laws discussed above. Under the Model Act, during a public health emergency, the appropriate public health authority would be authorized to "vaccinate persons as protection against infectious disease and to prevent the spread of contagious or possibly contagious disease." The Model Act requires that the vaccine be administered by a qualified person authorized by the public health authority, and that the vaccine "not be such as is reasonably likely to lead to serious harm to the affected individual." The Model Act recognizes that individuals may be unable or unwilling to undergo vaccination "for reasons of health, religion, or conscience," and provides that such individuals may be subject to quarantine to prevent the spread of a contagious or possibly contagious disease. State adoption of the Model Act's provisions has varied. Some statutes delegate power to the state to require vaccinations in a public health emergency, or to impose quarantine requirements. In contrast, other states provide that individuals may refuse vaccinations.

Role of the Federal Government

Federal jurisdiction over public health matters derives from the Commerce Clause, which states that Congress shall have the power "[t]o regulate Commerce with foreign Nations, and among the several States...." Thus, under the Public Health Service Act, the Secretary of the Department of Health and Human Services has authority to make and enforce regulations necessary "to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession." With regard to interstate commerce, the Public Health Service Act deals primarily with the use of quarantine and isolation measures to halt the spread of certain communicable diseases. No mandatory vaccination programs are specifically authorized, nor do there appear to be any regulations regarding the implementation of a mandatory vaccination program at the federal level during a public health emergency.

With regard to foreign countries, the Secretary has the power to restrict the entry of groups of aliens for public health reasons. This power includes the authority to issue vaccination requirements for immigrants seeking entry into the United States. Currently, certain vaccines specified in statute, and other vaccines recommended by the CDC Advisory Committee on Immunization Practices for the general U.S. population, are required for immigrants who seek permanent residence in the United States, and people currently living in the United States who seek to adjust their status to become permanent residents. CDC has determined that two diseases for which vaccines are recommended for routine use by the ACIP—for human papillomavirus (HPV) and zoster (shingles)—do not have the potential to cause outbreaks, and are therefore not required for admission. Vaccination requirements may be waived when the foreign national receives the vaccination, if the civil surgeon or panel physician certifies that the vaccination would not be medically appropriate, or if the vaccination would be contrary to the foreign national's religious or moral beliefs.

Likewise, the military has broad authority in dealing with its personnel, both military and civilian, including the protection of their health. Military regulations require American troops to be immunized against a number of diseases, including tetanus, diphtheria, influenza, hepatitis A, measles, mumps, rubella, polio, and yellow fever. Inoculations begin upon entry into military service, and later vaccines depend upon troop specialties or assignments to different geographic areas of the world. Courts have upheld the legality of military mandatory vaccination orders. For example, in United States v. Chadwell , two U.S. Marines refused to be vaccinated against smallpox, typhoid, paratyphoid, and influenza because of their religious beliefs. In upholding the convictions, the Navy Board of Review court (now the Navy-Marine Corps Court of Criminal Appeals) stated that religious beliefs were not above military orders and that "to permit this would be to make the professed doctrines of religious belief superior to military orders, and in effect to permit every soldier to become a law unto himself." Federal courts do not appear to contradict this reasoning. One district court, in reviewing a denial of a discharge decision of the Commandant of the Marine Corps under an "arbitrary and capricious standard," noted the lawfulness of the military's anthrax vaccination program, and noted military commanders' "overriding responsibility to protect the health and safety of American military personnel by administering appropriate vaccines when faced with the growing threat of biological and chemical weaponry." Likewise, the Court of Appeals for the District of Columbia Circuit upheld a Department of Defense policy of using unapproved, investigational drugs on military members in combat situations without their consent. Finally, in two recent cases the plaintiffs were discharged from the military for refusing to receive anthrax vaccinations. They brought claims challenging the Secretary of the Air Force's denial of their requests to correct the disciplinary records on the matter from their files. In both cases, the District Court for the District of Columbia ruled that the decision of the Board for the Correction of Military Records was not arbitrary and capricious.

As noted above, state and local governments have primary responsibility for protecting the public health, and this has been reflected in the enactment of various state laws requiring that school children be vaccinated against certain diseases before enrolling in school and that health care workers be vaccinated as a condition of employment, as well as laws providing for mandatory vaccination procedures during a public health emergency. Any federal mandatory vaccination program applicable to the general public would likely be limited to areas of existing federal jurisdiction, i.e., interstate and foreign commerce, similar to the federal quarantine authority. This limitation on federal jurisdiction acknowledges that states have the primary responsibility for protecting the public health, but that under certain circumstances, federal intervention may be necessary.