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. Continue reading