By Nicholas Ulrich

The recent outbreak of measles in some states has caused many to question our present vaccination polices. Vaccinations are old as far as medical technology is concerned. Scientists created the first smallpox vaccine over two centuries ago, and mandatory vaccination requirements started cropping up as the nineteenth century progressed. Today, all states have some form of vaccination policy with regard to measles. Some states, however, allow broad exception for personal or religious reasons. One New York Times contributor, KJ Dell’Antonia, recently argued that states should do away with these exceptions. She stated broadly that the Supreme Court had already ruled that mandatory vaccination polices are constitutional. However, whether states can do away with religious exceptions is more complicated. Last month the Second Circuit issued an opinion in Phillips v. City of New York, dealing with the New York vaccination requirement, which sheds some light on how courts today will treat this question.

The Supreme Court first dealt with a vaccination requirement in 1905 in Jacobson v. Massachusetts. Massachusetts had a policy requiring a small pox vaccination during an outbreak. Jacobson refused to take the vaccine. He claimed that he had taken the vaccine as a child and became seriously ill. The state fined him, pursuant to the statute, and he challenged the fine. The Supreme Court issued a very broad opinion stating that regulation of a public health concern of the state was well within the state’s police powers. However, the Court did not consider the issue under the First Amendment, because the Court did not apply the First Amendment’s Free Exercise Clause to the states until 1940.

The Phillips case deals with the same issue today. New York requires mandatory vaccination to attend public school. Its policy, however, allows for personal and religious exemptions. Despite this, plaintiffs challenged the policy in federal court on Due Process and First Amendment grounds. The court recognized that Jacobson controlled the Due Process question, but looked further on the First Amendment question. It examined dicta from Prince v. Massachusetts from 1944, where the Supreme Court stated that “[t]he 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 Second Circuit found this dictum persuasive, and affirmed the district court’s dismissal of the plaintiffs’ constitutional challenge.

The Second Circuit’s opinion indicates that courts today will likely uphold mandatory vaccination policies. However, there are a couple of distinguishing factors. First, New York actually has religious exemptions in its vaccination policy. While the court used broad language in determining that no First Amendment protections from mandatory vaccination laws exist, it also recognized that New York’s policy has religious exemptions. The court may have applied a more searching inquiry had the policy not included the religious exemptions. Second, the case does not address state constitutional concerns. Many states have free-exercise provisions in their state constitutions that provide broader protections than the First Amendment. These states would have to overcome those protections on an individual basis to pass broader vaccination requirements.

There are substantial concerns when dealing with communicable diseases, especially those diseases that are particularly hard on children. However, many states, through their constitutions, have indicated broad interest in protecting religious freedom as well as personal autonomy when it comes to medical procedures. State legislatures must be cognizant of those interests when dealing with these issues.