Mandatory Vaccinations: Precedent and Current Laws

Mandatory Vaccinations:
Precedent and Current Laws
Kathleen S. Swendiman
Legislative Attorney
American Law Division
Summary
This report provides an overview of the legal precedent for mandatory vaccination
laws, and of state laws that require certain individuals or populations to be vaccinated
against various communicable diseases. The role of both the federal and state
governments with respect to public health emergency powers, including requiring the
use of mandatory vaccines, is discussed. This report will be updated as warranted.
History and Precedent
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.¹ 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 isolation² or the
enactment of mandatory vaccination laws.³ Mandatory vaccination laws were first
enacted in the early nineteenth century, beginning with Massachusetts’ smallpox
vaccination law in 1809.⁴
Jacobson v. Massachusetts⁵ is the seminal case regarding a state’s or municipality’s
authority to institute a mandatory vaccination program as an exercise of its police powers.

¹ See The People v. Robertson, 134 N.E. 815, 817 (1922).
² For more information on state and federal quarantine authority, see CRS Report RL33201,
Federal and State Quarantine and Isolation Authority, by Kathleen S. Swendiman and Jennifer
K. Elsea.
³ Starting with the smallpox vaccine, vaccines have been used to halt the spread of disease for
over 200 years. Donald A. Henderson & Bernard Moss, Smallpox and Vaccinia, in V^ACCI^NES

74, 75 (Stanley A. Plotkin & Walter A. Orenstein eds., 3d ed. 1999).

⁴ L^AW^RENCEO.G^OSTI^N,P^UBLI^CH^EALTHL^AW:P^OW^ER,D^UTY,R^ESTRAI^NT, 181 and n. 27 (2000).
⁵ 197 U.S. 11 (1905).

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.”⁶ 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.”⁷ 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.”⁸
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.”⁹ 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.”¹⁰
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:¹¹

⁶ Id. at 31. The Massachusetts statute in question reads as follows: “Boards of health, if in their
opinion it is necessary for public health or safety, shall require and enforce the vaccination and
revaccination of all the inhabitants of their towns, and shall provide them with the means of free
vaccination. Whoever refuses or neglects to comply with such requirement shall forfeit five
dollars.” M.G.L.A. c. 111, § 181 (2004).
⁷ Id. at 25.
⁸ Id.
⁹ Id. at 26.
¹⁰ Id. In Adams v. Milwaukee, 228 U.S. 572, 581-82 (1913), the Supreme Court reaffirmed
Jacobson’s holding that states may delegate the power to order vaccinations to local
municipalities for the enforcement of public health regulations. See also, Zucht v. King, 260 U.S.
174, 176 (1922), holding that vaccination laws do not discriminate against schoolchildren to the
exclusion of others similarly situated, i.e., children not enrolled in school. In Prince v.
Massachusetts, 321 U.S. 158 (1944), the Court held generally that the right to practice religion
does not include the liberty to jeopardize the well being of minors.
¹¹ Id. at 28. Smallpox vaccinations are no longer administered since smallpox has been
eradicated worldwide as of 1980. See World Health Organization, Smallpox Fact Sheet, at
[http://www.who.int/mediacentre/factsheets/smallpox/en/]. One author has suggested that while
Mr. Jacobson might be successful in his refusal to be vaccinated against smallpox today since
smallpox has been eradicated, the threat of terrorists using smallpox as a weapon might make the
use of the vaccine a reasonable measure yet again. Andrew Zoltan, JACOBSON revisited:
Mandatory Polio Vaccination as an Unconstitutional Condition, 13 G^EO.M^ASONL.R^EV.735,
747-752 (2005). See also CRS Report RS21288, Smallpox: Technical Background on the
Disease and Its Potential Role in Terrorism, by Frank Grottron.

[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 has a law requiring children
to be vaccinated before they enroll in a public or private school.¹² Early statutes required¹³
vaccination against smallpox and were amended as new vaccines were introduced.
Many modern school vaccination laws are the result of measles outbreaks in the 1960s¹⁴
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 a¹⁵
number of diseases on the schedule, including diphtheria, measles, rubella, and polio.
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.¹⁶ 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 religious¹⁷
reasons. Exemptions based on philosophical or moral convictions in opposition to

¹² James G. Hodge, Jr. and Lawrence O. Gostin, School Vaccination Requirements: Historical,
Social, and Legal Perspectives, 90 Ky. L. J. 831, 868-73 (2001/2002).
¹³ Id. at 867.
¹⁴ Id. at 868.
¹⁵ See the CDC vaccination guidelines at [http://www.cdc.gov/vaccines/recs/default.htm]. There
have been attempts in some states to mandate the new Human Papillomavirus vaccine as part of
school vaccine requirements, with legislative action in Virginia and New Jersey. See a summary
of state activity at [http://www.ncsl.org/programs/health/HPVvaccine.htm]. See also Rebecca
E. Skov, Examining Mandatory HPV Vaccination for All School-Aged Children, 62 Food Drug
L.J. 805 (2007).
¹⁶ National Conference of State Legislatures, Exemptions for Childhood Immunizations,
L^EGI^S^BRI^EF, Vol. 14, No. 30, June/July 2006. For example, in Colorado, an exemption from the
vaccination requirements may be obtained by submitting to the school a certification from a
licensed physician that “the physical condition of the student is such that one or more specified
immunizations would endanger his or her life or health or is medically contradicted due to other
medical conditions.” C^OLO.R^EV.S^TAT.§ 25-4-903(2)(a) (2004).
¹⁷ Only two states, Mississippi and West Virginia, do not provide for an exemption based on
religious beliefs. The Mississippi Supreme Court has held that religious exemptions to mandatory
vaccination violate equal protection rights under the Fourteenth Amendment because the
exemptions “require the great body of school children to be vaccinated and at the same time
(continued...)

immunization are less common but are provided by 19 states.¹⁸ States may specify that
religious or philosophical beliefs be “sincere” or “conscientiously held.”¹⁹ 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.²⁰
Compulsory vaccination laws as a prerequisite for school enrollment have been the
subject of numerous court cases.²¹ By and large, the Supreme Court, and most lower
courts, have upheld such laws, granting considerable deference to states’ police power to
require immunizations to protect the public health.²² Still, some courts have held that a
state’s right to require vaccinations is not absolute, resulting in liberal interpretations of
waiver exemptions.²³
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

¹⁷ (...continued)
expose them to the hazard of associating in school with children exempted under the religious
exemption who had not been immunized as required by the statute.” Brown v. Stone, 378 So.2d
218, 223 (Sup. Ct. Miss. 1979). See Linda E. LeFever, Religious Exemptions from School
Immunization: A Sincere Belief or a Legal Loophole?, 110 Penn St. L. Rev. 1047 (2006).
¹⁸ The19 states that allow philosophical exemptions for persons who object to immunizations
because of personal, moral or other nonreligious beliefs are Arizona, Arkansas, California,
Colorado, Idaho, Louisiana, Maine, Michigan, Minnesota, New Mexico, North Dakota, Ohio,
Oklahoma, Pennsylvania (by regulation), Texas, Utah, Vermont, Washington, and Wisconsin.
See also chart at [http://www.ncsl.org/programs/health/2004exchart.htm] published by the
National Conference of State Legislatures.
¹⁹ See e.g., M^ASS.G.L.A.c. 76, § 15 (2007); M^IN^N.S^TAT.A^NN.§ 121A.15 (2003).
²⁰ See e.g., L^A.R^EV.S^TAT.A^NN. § 17:170E (2007);K^AN.S^TAT.A^NN. § 72-5209(b)(2) (2006).
In Galinsky v. Board of Education of New York, 312 F.3d 636 (2d Cir. 2000), the circuit court
upheld the district court’s finding that the parents’ claim for a religious exemption was motivated
by their personal fears for their daughters’ well being, and not by religious beliefs.
²¹ Steve P. Calandrillo, Vanishing Vaccinations: Why are So Many Americans Opting Out of
Vaccinating Their Children?, 37 Mich. J.L. Reform 353, 385-388 (2004).
²² Id. at 387-388. See, eg., cases cited at footnote 10; also, Seubold v. Fort Smith Special Sch.
Dist., 237 S.W.2d 884, 887 (Ark. 1951) (mandatory school vaccination does not deprive
individuals of liberty and property interests without due process of law); McCartney v. Austin,
293 N.Y.S.2d 188, 200 (N.Y. 1968) (New York vaccination law does not interfere with freedom
to worship since Roman Catholic faith does not proscribe vaccination).
²³ See Berg v. Glen Cove City Sch. Dist., 853 F. Supp. 651, 654-55 (E.D.N.Y. 1994) (holding that
a Jewish parent’s “sincere religious belief” may support an opposition to immunizations, even
though the Jewish religion does not prohibit vaccinations); Jones ex rel. Jones v. State, Dep’t
of Health, 18 P.3d 1189, 1195 (Wyo. 2001) (health department may not require that a student
provide a medical reason for seeking a waiver from immunization); In re LePage, 18 P.3d 1177,
1180 (Wyo. 2001) (holding that a health department may not inquire into the sincerity of a
parent’s religious objection to immunizations).

institute additional programs in the event of a civil defense emergency period.²⁴ 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.”²⁵ In addition, exemptions may
be provided for medical reasons or where objections are based on religion or conscience.²⁶
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.
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.²⁷ 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 emergencies²⁸
(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.²⁹
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.”³⁰ 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

²⁴ H^AW.R^EV.S^TAT. § 128-8 (2006). In Arizona, the Governor, during a state of emergency or
state of war emergency in which there is an occurrence or the imminent threat of smallpox or
other highly contagious and highly fatal disease, may “issue orders that mandate treatment or
vaccination of persons who are diagnosed with illness resulting from exposure or who are
reasonably believed to have been exposed or who may reasonably be expected to be exposed.”
A^RI^Z.R^EV.S^TAT.§ 36-787 (2006).
²⁵ F^LA.S^TAT. § 381.00315 (2007).
²⁶ See, eg., C^ONN.G^EN.S^TAT. § 19a-222 (2007) (exemption for physician’s determination of
sickness); V^A.C^ODEA^NN. § 32.1-48 (2007) (vaccination waived if detrimental to person’s
health, as certified by a physician); W^IS.S^TAT. § 252.041 (2007) (vaccination may be refused
for reasons of religion or conscience).
²⁷ The text of the Center’s Model State Emergency Health Powers Act from 2001 is available at
[http://www.publichealthlaw.ne t/Resources/Modellaws.htm] .
²⁸ Id.
²⁹ The Center for Law and the Public’s Health tracks state legislative activity relating to the
Model Act at [http://www.publichealthlaw.net/Resources/Modellaws.htm#MSEHPA].
³⁰ Model State Emergency Health Powers Act, Article VI, Sec. 603.

harm to the affected individual.”³¹ The 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.³²
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....”³³ 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.”³⁴ While this language appears to
confer broad authority to promulgate regulations necessary to prevent the spread of
disease, current regulations deal primarily with the use of quarantine measures to halt the
spread of certain communicable diseases.³⁵ The Public Health Service Act does not
specifically authorize any mandatory vaccination programs, 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.³⁶
As noted above, state and local governments have the primary responsibility for
protecting the public health, and this has been reflected in the enactment of the various
state laws requiring that school children be vaccinated against certain diseases before
enrolling in school, and authorizing 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.³⁷ 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.

³¹ Id.
³² Id. See Section 604 of the Model Act for provisions relating to quarantine.
³³ U.S.C^ONST.art. I, § 8.
³⁴ 42 U.S.C. 264(a). Originally, the statute conferred this authority on the Surgeon General;
however, pursuant to Reorganization Plan No. 3 of 1966, all statutory powers and functions of
the Surgeon General were transferred to the Secretary.
³⁵ See 42 C.F.R. Parts 70 (interstate matters) and 71 (foreign arrivals).
³⁶ For more information on federal vaccination policy, see CRS Report RL31694, Smallpox
Vaccine Stockpile and Vaccination Policy, by Judith A. Johnson.
³⁷ See supra footnote 2. It has been suggested that in the case of a serious outbreak of a
communicable disease, the federal government might enact policies to encourage vaccinations
or place restrictions on those who refuse. Bureau of Justice Assistance, U.S. Department of
Justice, The Role of Law Enforcement in Public Health Emergencies, September, 2006) at 19.