Last week the federal Centers for Disease Control and Prevention reported that 971 cases of measles have been confirmed across the country in just the first five months of this year, eclipsing the previous annual high of 963 cases (in 1992) since vaccines became widely used. New York accounts for a large portion of the new epidemic, with New York City having 500 cases since last September and Rockland County 254 so far this year.

The re-emergence of measles, which had been eliminated as an epidemic disease in the United States in 2000, has triggered sharp public debate in New York and elsewhere about mandatory vaccination. And the concentration of new cases in certain orthodox Jewish communities has prompted the New York State Legislature to consider eliminating the religious exemption from the state's mandatory-vaccination law.

While much of the public debate has focused on the public-health issues bearing on measles and on the false and misleading claims of anti-vaccination advocates, government-mandated vaccination does present meaningful constitutional issues. This is one area, however, where the law is long-settled and makes clear the state can mandate vaccinations to address the current measles outbreak, even in the face of religious objections. Less clear, though, is how far the state can go in implementing such a mandate, which ultimately would entail forced injections.

Mandatory Vaccinations

Well before the development of contemporary individual-rights constitutional jurisprudence, the Supreme Court confronted the fundamental conflict between individual liberty and bodily autonomy on the one hand and the societal need to protect against contagious disease on the other. In a sweeping decision that reads more as political philosophy than judicial analysis, the court in 1905 came down squarely on the side of societal welfare.

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), presented a constitutional challenge to a Cambridge, Massachusetts, regulation requiring that all inhabitants be vaccinated against smallpox, which had become “prevalent to some extent” in that city. The state law authorizing such local regulations excepted children who were “unfit subjects for vaccination” but otherwise imposed a $5 penalty (around $145 now when adjusted for inflation) on those who did not comply.

Henning Jacobson was an adult who refused to be vaccinated, leading to a criminal conviction in Massachusetts courts that ended up in the U.S. Supreme Court. As an initial matter, the Supreme Court observed that Massachusetts' “police power” plainly embraced “such reasonable regulations established directly by legislative enactment as will protect the public health and public safety.” Turning specifically to vaccinations, however, the court confronted Jacobson's fundamental autonomy concerns:

The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; 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.

In response, the court launched into a broad discussion of individual liberty, social order, and anarchy:

There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.

In light of these principles, the Supreme Court unanimously upheld the regulation given that smallpox was “prevalent to some extent” and “growing” in Cambridge. As the court explained, “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

Finally, in a lengthy passage bearing directly on arguments by contemporary anti-vaccination advocates, the court emphatically rejected the claim that concerns by small numbers of people or medical professionals about the effectiveness or safety of vaccines supported invalidating vaccination mandates. As part of this discussion, the court quoted at length a decision from the New York Court of Appeals upholding a New York requirement that all children be vaccinated as a condition of being admitted to school:

The appellant claims that vaccination does not tend to prevent smallpox, but tends to bring about other diseases, and that it does much harm, with no good. It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease, and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession … . The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.

Fifteen years after Jacobson, in its only other decision squarely deciding a constitutional challenge to a vaccination requirement, the Supreme Court upheld a San Antonio, Texas ordinance requiring that children be vaccinated as a condition of being able to attend public or private school. In a brief opinion drawing on Jacobson and related authorities, the court held in Zucht v. King, 260 U.S. 174 (1922), that there was “no question as to the validity of the ordinance” and that “these ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health.”

Religious Exemptions

Though long-standing Supreme Court precedent permits general vaccination mandates, including school-enrollment ones, the court has never squarely held the Free Exercise Clause does not limit the government's authority to impose such mandates in the face of bona fide religious beliefs. Nonetheless, in a 1944 case it stated in dicta that religious beliefs must yield to vaccination mandates.

At issue in Prince v. Massachusetts, 321 U.S. 158 (1944), was the constitutionality of various state child-labor laws that conflicted with the religious beliefs of the Jehovah's Witnesses about the parenting of their children. While that dispute did not involve vaccinations, the Supreme Court specifically addressed them in the course of discussing the state's broad authority to regulate familial relations in the face of religious objections:

But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth's well being, the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The 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. (emphasis added)

Accepting this dicta as controlling, lower courts have rejected claims that religious concerns shield individuals from vaccination mandates.

Forced Injections

A final important constitutional question presented by mandatory vaccinations that the Supreme Court has never addressed is the one about ultimate implementation. In Jacobson the penalty was a fine, and in Zucht it was exclusion from school. But what about the forced administration of a vaccine? When it comes to measles, forced administration would entail subcutaneous injections with a needle.

While the court has not confronted this issue, it did recently decide a constitutional dispute concerning the compelled extraction of a blood using a needle. At issue in Missouri v. McNeely, 569 U.S. 141 (2013), was a forced taking of a blood sample from an arrestee suspected (accurately so) of drunk driving. In that instance, the arresting officer had made no effort to obtain a judicial warrant to take the blood, and the state argued in the Supreme Court that drunk-driving arrests as a category presented exigent circumstances justifying warrantless and forced blood draws. In making this argument, the state relied on earlier Supreme Court cases recognizing certain highly-invasive searches as presenting exigent circumstances categorically.

In rejecting the state's categorical argument, the court stated “[w]e have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.” In light of these interests, the court held that forced drunk-driving blood draws always require a judicial warrant unless the circumstances particular to the situation created exigent circumstances.

Looking Forward

Over a century ago the Supreme Court held that the government has broad authority to mandate vaccinations, and it soon thereafter held that this authority encompasses the power to condition school enrollment on children being vaccinated. Those decisions remain in full force to this day, and there is no constitutional doubt about the ability of states and localities to fight the current measles outbreak with vaccination mandates.

As for the issue of exemptions for bona fide religious objections, the court has not expressly decided the issue, but its discussion of it in Prince in 1944 was clear and specific and has been recognized as deciding the issue. Given this, New York could repeal the religious exemption in its current mandatory-vaccination law without running afoul of the Constitution's Free Exercise Clause.

The issue of compelled measles-vaccine injections as an ultimate remedy is more complicated and rightly so. Any such state action would need to meet a high standard, including a showing that lesser alternatives—such as quarantine—would not be sufficient in satisfying the state's interest in protecting public health. Assuming the state could make this showing in some circumstances, well-established constitutional principles would require a judicial order for compelled measles-vaccine injections.

Christopher Dunn is the legal director of the New York Civil Liberties Union. He can be reached at [email protected]