National Security Law Brief, American University Washington School of Law
Jacobson v. Massachusetts and the mandatory smallpox vaccinations of Cambridge, Massachusetts have commonly been used to justify mandatory vaccination polices when the vaccine is essential to the safety and health of the community. Jacobson v. Massachusetts, 197 U.S. 11, 11 (1905). However, with the advances in biotechnology since 1905 some believe the ruling in Jacobson may be out of touch with modern issues, such as the Human Papilloma Virus (HPV) vaccine. Therefore, in order to reconcile and update Jacobson, two main theories have been presented to narrow the term “essential” and define it in a modern context, including medical and practical necessity, and a modified hand rule. Consequently, these theories may limit the ability of the government to impose mandatory vaccinations in cases without clear medical benefits and therefore affect the Government’s ability to respond to or mitigate a bioterrorist attack.
In Jacobson v. Massachusetts, the U.S. Supreme Court held that an individual’s rights and liberties are not absolute and the mandatory vaccination regulation brought under Massachusetts’ state statutes was constitutional. Id. at 39. Jacobson appealed after having a criminal complaint brought against him in the lower courts of Massachusetts for not consenting to a smallpox vaccination, as mandated by the city of Cambridge, Massachusetts. Id. at 13. In his appeal, Jacobson claimed that the regulation passed by the board of health for the city of Cambridge was a violation of his 14th amendment rights. On this appeal, the U.S. Supreme Court held that “[t]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.” Id. at 26-27. Based on this holding, the court found that the mandatory vaccination clause was constitutional because it is essential to the safety and health of the community.
The HPV vaccine, and the potential for a mandatory HPV vaccination, has been the center of much debate and has caused many people to reexamine what is needed in a vaccine to allow it to be essential to the safety and health of the community. HPV is an STD which over twenty million Americans have contracted and over 50% of sexually active people will contract in their lifetime. Additionally, HPV has been linked to multiple forms of cancer, including cervical cancer and oropharynx cancer. Id. The HPV vaccine aims to prevent transmission by vaccinating people before they contract the STD; however, the necessity of the vaccine has been challenged on the fact that transmission can be prevented through the practice of abstinence or safe sex. See Benjamin Lemke, Why Mandatory Vaccination of Males against HPV is Unconstitutional: Offering a New Approach To an Old Problem, 19 B.U. Pub. Int. L.J. 261, 261-63 (2010). It is this potential for alternative preventative measures that allows for a closer analysis to determine to what extend HPV is essential.