- Excerpt -
-
- Role Of The Federal Government
-
- Under the Public Health Service Act, the Secretary of
Health and Human Services has the 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."30
While this language appears to confer broad authority to promulgate regulations
necessary to prevent the spread of disease, the only regulations specifically
authorized by the Act relate to the apprehension, detention, examination,
or conditional release of individuals.31 The Act does not specifically
authorize regulations related to 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.32
-
- 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 state laws pertaining to public health and
establishing 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, similar to the federal quarantine
authority.33 Generally, federal regulations authorizing the apprehension,
detention, examination, or conditional release of individuals are applicable
only to individuals coming into a State or possession from a foreign country
or a possession.34 This limitation on federal jurisdiction acknowledges
that states have the primary responsibility for protecting the public health,
but under certain circumstances, federal intervention may be necessary.
Any federal mandatory vaccination program applicable to the general public
would likely incorporate similar jurisdictional limitations.
-
-
- Entire Report -
-
-
- http://www.infowars.com/mandatory-vaccinations-precedent-and-current-laws/
- Mandatory Vaccinations: Precedent and Current Laws
-
- Angie A. Welborn
- Congressional Research Service
-
- July 13, 2009
-
- Summary
-
- This report discusses the legal precedent for mandatory
vaccination laws and provides a brief overview 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 a vaccine,
is discussed. This report will be updated as warranted.
-
- History and Precedent
-
- Historically, the preservation of the public health has
been the 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 quarantine or the enactment of mandatory
vaccination laws.2 Mandatory vaccination laws were first enacted in the
early nineteenth century, with Massachusetts enacting the first such law
in 1809.3
-
- Jacobson v. Massachusetts is viewed as the seminal case
regarding a state's or municipality's authority to institute a mandatory
vaccination program as an exercise of its police powers.4 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."5 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."6 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."7
-
- The Court addressed the 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 "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."8
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."9
-
- State Mandatory Vaccination Laws
-
- School Vaccination Requirements. State laws mandating
vaccinations for children are very common. Every state has a law requiring
children to be vaccinated before they enroll in a public or private school.
Early statutes required vaccination against smallpox and were amended as
new vaccines were introduced.10 Many modern school vaccination laws are
the result of measles outbreaks in the 1960's and 1970's.11 Generally,
states use the Centers for Disease Control and Prevention's schedule of
immunizations as a guide, and require children to be vaccinated against
a number of diseases on the schedule, including diphtheria, measles, rubella,
and polio.12
-
- Despite the wide-spread imposition of school vaccination
requirements, many states provide exemptions for medical, religious, and,
to a lesser extent, philosophical reasons. These provisions vary by state,
with medical exemptions for children who may suffer adverse effects from
the vaccine being the most common. For example, in Colorado and most other
states, 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."13 Almost all states
also grant religious exemptions for persons who oppose immunizations for
religious reasons.14 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.15
Exemptions based on philosophical or moral convictions in opposition to
immunization are less common, but are provided by more than a dozen states,
including Arizona, California, Idaho, Louisiana, Maine, Michigan, Minnesota,
Nebraska, North Dakota, Ohio, Oklahoma, Vermont, Washington, and Wisconsin.16
States may specify that such religious or philosophical beliefs be "sincere"
or "conscientiously held."17
-
- 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, the
state board of health, or the state health officer. For example, in Hawaii,
the Governor has the power to supplement the state's existing compulsory
vaccination programs and institute additional programs in the event of
a civil defense emergency period.18 Arizona also authorizes 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, "to 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."19 In Florida, upon declaration
of a public health emergency, the state health officer may order an individual
to be vaccinated "for communicable diseases that have significant
morbidity or mortality and present a severe danger to public health."20
-
- Other states have provisions for mandatory vaccinations,
but provide exemptions similar to those for childhood vaccinations discussed
above. For example, in Connecticut, a person may refuse a vaccination if
a physician determines that "it would not be prudent on account of
sickness."21 In Virginia, vaccination requirements may also be waived
if the vaccination would be detrimental to a person's health, as certified
by a physician.22 Wisconsin allows a person to refuse a vaccination for
medical reasons and also for "reasons of religion or conscience."23
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.24
-
- Model State Emergency Health Powers Act. In addition
to the current laws, many states are considering or have considered the
provisions set forth in the Model State Emergency Health Powers Act. The
Model State Emergency Health Powers Act was drafted by The Center for Law
and the Public's Health at Georgetown and Johns Hopkins Universities.25
The Model Act 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 emergencies (including
bioterrorism) while also respecting individual rights."26 It is important
to note that this is intended to be a model for states to use in evaluating
their emergency response plans, and passage of the Model Act in its entirety
is not required. In fact, many states will likely use parts of the Model
Act, but tailor their statutes and regulations to respond to unique or
novel situations that may arise in their jurisdiction.
-
- 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 Act includes
provisions similar to the current laws discussed above. Under the Model
Act, during a public health emergency the 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."27 The 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 harm
to the affected individual."28 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.29
-
- Role of the Federal Government
-
- Under the Public Health Service Act, the Secretary of
Health and Human Services has the 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."30
While this language appears to confer broad authority to promulgate regulations
necessary to prevent the spread of disease, the only regulations specifically
authorized by the Act relate to the apprehension, detention, examination,
or conditional release of individuals.31 The Act does not specifically
authorize regulations related to 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.32
-
- 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 state laws pertaining to public health and
establishing 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, similar to the federal quarantine
authority.33 Generally, federal regulations authorizing the apprehension,
detention, examination, or conditional release of individuals are applicable
only to individuals coming into a State or possession from a foreign country
or a possession.34 This limitation on federal jurisdiction acknowledges
that states have the primary responsibility for protecting the public health,
but under certain circumstances, federal intervention may be necessary.
Any federal mandatory vaccination program applicable to the general public
would likely incorporate similar jurisdictional limitations.
-
-
- 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 RL31333, Federal and State Responses to Biological
Attacks: Isolation and Quarantine Authority.
- 3 Lawrence O. Gostin, Public Health Law: Power, Duty,
Restraint, p. 181 and n. 27. 4 197 U.S. 11 (1905).
- 4 Lawrence O. Gostin, Public Health Law: Power, Duty,
Restraint, p. 181 and n. 27. 4 197 U.S. 11 (1905).
- 5 Id at 31. The Massachusetts statute in questions 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." ALM GL ch.
111, § 181 (2004).
- 6 Id at 25.
- 7 Id.
- 8 Id at 26.
- 9 Id.
- 10 James G. Hodge, Jr. and Lawrence O. Gostin, School
Vaccination Requirements: Historical, Social, and Legal Perspectives, 90
Ky. L. J. 831, 867 (2001/2002).
- 11 Id at 868.
- 12 Id. See id at 869 for a complete list state laws regarding
school vaccination requirements.
- 13 Colo. Rev. Stat. § 25-4-903(2)(a) (2004).
- 14 Only one state West Virginia appears to
not provide for an exemption based on religious beliefs. W. Va. Code §
16-3-4 (2004). 15 See e.g., La. Rev. Stat. Ann. § 17:170(E) (2004);
Kan. Stat. Ann. § 72-5209(b)(2) (2003). 16 See supra note 10 at fn.
234. 17 See e.g., Massachusetts, ALM GL ch. 76, § 15 (2004); Minn.
Stat. Ann. § 121A.15 (2003). 18 HRS § 128-8 (2003). State law
authorizes the department of health to adopt rules "requiring and
governing immunization against [communicable diseases], if a suitable immunizing
agent is available for the disease and a need for immunization against
it exists within the State." HRS § 325-32 (2003).
- 15 See e.g., La. Rev. Stat. Ann. § 17:170(E) (2004);
Kan. Stat. Ann. § 72-5209(b)(2) (2003).
- 16 See supra note 10 at fn. 234.
- 17 See e.g., Massachusetts, ALM GL ch. 76, § 15
(2004); Minn. Stat. Ann. § 121A.15 (2003).
- 18 HRS § 128-8 (2003). State law authorizes the
department of health to adopt rules "requiring
- and governing immunization against [communicable diseases],
if a suitable immunizing agent
- is available for the disease and a need for immunization
against it exists within the State." HRS
- § 325-32 (2003).
- 19 A.R.S. § 36-787 (2004).
- 20 Fla. Stat. § 381.00315 (2004). 21 Conn. Gen.
Stat. § 19a-222 (2003). 22 Va. Code Ann. § 32.1-48 (2004). 23
Wis. Stat. § 252.041 (2004).
- 21 Conn. Gen. Stat. § 19a-222 (2003). 22 Va. Code
Ann. § 32.1-48 (2004). 23 Wis. Stat. § 252.041 (2004).
- 24 Id.
- 25 A copy of the Model Act can be found at [http://www.publichealthlaw.net/Resources/Modellaws.htm].
- 26 Id.
- 27 Model State Emergency Health Powers Act, Article VI,
Sec. 603.
- 28 Id.
- 29 Id. Quarantine provisions are located in Section 604
of the Model Act.
- 30 42 U.S.C. 264. 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.
- 31 42 U.S.C. 264(c).
- 32 For more information on federal vaccination policy,
see CRS Report RL31694, Smallpox Vaccine Stockpile and Vaccination Policy.
- 33 See supra note 2.
- 34 42 U.S.C. 264(c). However, such regulations may provide
for the apprehension and examination of "any individual reasonably
believed to be infected with a communicable disease in a qualifying stage
and (A) to be moving or about to move from a State to another State; or
(B) to be a probable source of infection to individuals who, while infected
with such disease in a qualifying stage, will be moving from a State to
another State." 42 U.S.C. 264(d).
|
