Author: Dan Stroh, Associate Member, University of Cincinnati Law Review
Vaccines, a medical technology that has existed since the late 1700s, have again become front-page news due to a recent measles outbreak. Despite previously being eliminated in the United States, in 2015 there have been more than 100 confirmed cases of the disease in California alone. Politicians and legal scholars are now faced with two questions raised in the past: Should vaccines be mandatory prior to entering school, and is it constitutional to do so? Showing the importance of this controversy, and despite polls showing that a large majority of the public favors requiring vaccines, candidates and potential candidates in the 2016 presidential election stand on both sides of the issue.
Looking past the political nature of this debate, vaccines present a public health policy and legal issue based largely on old case law. Opponents of mandatory vaccination as a legal issue argue that the Free Exercise Clause of the First Amendment requires that there be a religious exemption in any vaccination law. As the case law predates the application of the Free Exercise Clause, this has not been addressed by the Supreme Court. In addition, some argue that the prior case law requires a different interpretation in light of scientific developments. However, both of these arguments have flaws and the importance of vaccination to the public as a whole should cause the legislatures in all states to require mandatory vaccination.
Foundational Law and Vaccination Requirements in the United States
Currently, there is no federal vaccination requirement, but all fifty states require children in schools to be vaccinated. The states require vaccinations with three different types of exemptions. Two states, Mississippi and West Virginia, have medical exemptions allowing children to forgo vaccination if a state-certified physician determines it is unsafe for the child to receive a vaccine. Most states offer some form of a religious exemption. The exemptions vary on how strictly they are enforced, with some states allowing a parent simply to sign and submit a form, while others more closely examine the applicant’s claimed religious views. Finally, some states offer a broad exemption, often called a philosophical exemption, allowing parents the right to refuse vaccines for almost any reason they choose.
There are two foundational cases for the permissibility of a state to enforce mandatory vaccinations. In 1905, the Supreme Court ruled in Jacobson v. Commonwealth of Massachusetts that a state’s police power is properly exercised in mandating vaccines. Following Jacobson, in 1922 the Supreme Court stated directly, “. . . it is within the police power of a state to provide for compulsory vaccinations.” Importantly, Jacobson and Zucht’s precedent did not discuss whether a mandatory vaccine violates the free exercise clause. To overcome the elimination of religious exemptions in the many states that currently have one, a mandatory vaccination law would have to withstand a free exercise challenge.
Vaccines v. Free Exercise: Case Law on the Existence of a Free Exercise Right
While some courts have neglected to answer the question of whether the free exercise right prohibits mandatory vaccinations without a religious exemption, some decisions both acknowledge the existence of a free exercise right while others deny it. While the Supreme Court has not addressed this issue directly in a holding, in two cases the Court has addressed mandatory vaccinations and their complications in dicta. In Prince v. Massachusetts, a child labor case, the Court stated, “[t]he 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.” Separately, in the seminal case on free exercise claims of the modern era, the court noted that compulsory vaccinations were part of a group of civic obligations that do not fundamentally require that there be a religious exemption so long as the law is one of general applicability.
Following these cases, a district court in New York held that mandatory vaccine laws do not require a compelling interest and, therefore, are constitutional without a religious exemption. In a different decision in which the court chose to apply strict scrutiny despite the Supreme Court’s dicta, the court still found that there was a compelling interest in preventing the spread of communicable diseases. Under either of the standards used, mandatory vaccinations pass the tests implicated by a free exercise challenge. Thus, through the use of Supreme Court dicta, as well as holdings directly on point in lower federal courts, the majority of case law at this time allows the lack of a religious exemption in mandatory vaccination laws.
Despite these rulings, another federal court required religious exemptions to a vaccination law be provided for parents or guardians, even if one does not exist in the state’s statutes, through satisfaction of a two-part test. First, the parent must show that the religious belief is sincerely held. Second, he or she must show that the vaccination requirement is not preventing grave and immediate danger. If there is a grave and immediate danger, however, a religious exemption is no longer required. Also, it is important to note that this case was decided prior to the major Free Exercise Clause decision handed down by the Supreme Court in Employment Division v. Smith.
Based on the dicta in Smith and Prince, the Supreme Court would likely rule that a mandatory vaccination law is not a per se constitutional violation of the Free Exercise Clause. Cases following Smith’s change in free exercise jurisprudence indicate as much. The Brown decision forcing a two-part test into the discussion seems to have a limited basis for remaining good law after Smith. In addition, while Brown has been followed by at least one court, it does not appear to have made a large impact as it has been cited little, especially for its decision to separate the two-part test. Finally, as the Workman decision shows, even when applying strict scrutiny, a compelling interest in mandatory vaccinations exists. The protection of the public at large, not just those receiving vaccines, easily satisfies the government’s burden in showing that mandatory vaccinations provide a social benefit. For all of these reasons, mandatory vaccinations are not a constitutional violation of the Free Exercise Clause.
A “Personal” Decision with Very Real Consequences to Others
With mandatory vaccinations constitutional as a matter of law, as a matter of policy, all states should mandate the vaccines that are recommended by the Centers for Disease Control and other recognized institutions responsible for studying public health. Vaccines have been proven many times over to be safe despite claims to the contrary. While some claim vaccines do more harm than good, from causing autism to simply being an injection of harmful chemicals, none of these claims have been proven in a valid study. As even politicians have latched onto this knowledge, making vaccines mandatory prior to children’s entrance into schools is one of the only ways to protect all of the children and adults who were not vaccinated for health reasons, thereby benefitting public health as a whole. Exceptions to this rule allow for situations where vaccines are not used enough to produce the results of “herd immunity,” protecting even those unvaccinated due to health reasons, and thus undermining the purpose of vaccines in the first place. As parents of children who were unvaccinated because of health reasons who have now been infected by the measles virus attest, it is in everyone’s best interests to vaccinate children, not just the child receiving the vaccine. For these reasons, and with the goal of improving public health in the United States, each state should revise its existing mandatory vaccination laws to the strongest possible level by eliminating the religious and philosophical exemptions for vaccinations.
 Dan Whitcomb, California Reports Four More Measles Cases in Disneyland Outbreak, Reuters, (Feb. 23, 2015 7:38 PM), http://www.reuters.com/article/2015/02/24/us-usa-measles-idUSKBN0LS02920150224.
 Alistair Bell, Big U.S. Majority Favors Mandatory Vaccinations: Reuters/Ipsos Poll, Reuters, (Feb. 24, 2015 7:19 AM), http://uk.reuters.com/article/2015/02/24/us-usa-vaccines-poll-idUKKBN0LS15720150224.
 See Carrie Dann, Rand Paul: Vaccines Can Lead to ‘Mental Disorders,’ NBCNews, (Feb. 2, 2015 5:05 PM), http://www.nbcnews.com/politics/elections/rand-paul-vaccines-can-lead-mental-disorders-n298821; Hilary Clinton, Twitter, (Feb. 2, 2015 10:45 PM), https://twitter.com/HillaryClinton/status/562456798020386816.
 Liz Szabo, Measles Outbreak Raises Question of Vaccine Exemptions, USA Today, (Jan. 23, 2015, 8:45 AM), http://www.usatoday.com/story/news/2015/01/21/disneyland-measles-schools-outbreak/22106151/; See also German Lopez, Everything You Need to Know About Vaccines, Vox, (Feb. 7, 2015, 12:40 AM), http://www.vox.com/cards/vaccines/vaccination-rates-united-states. For a complete list of exemptions by state, see School Vaccination Requirements, Exemptions, and Web Links, Centers for Disease Control and Prevention, http://www2a.cdc.gov/nip/schoolsurv/schImmRqmtReport.asp (last visited Mar. 27, 2015).
 Lopez, supra note 4; see also Surgeon General: Vaccine Exemptions Too Permissive, CNN, (Feb. 4, 2015, 5:23 PM) http://www.cnn.com/videos/tv/2015/02/04/lead-gupta-measles-surgeon-general.cnn.
 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 35 (1905).
 Zucht v. King, 260 U.S. 174, 176 (1922).
 See Phillips v. City of New York, 775 F.3d 538, 543 (2nd Cir. 2015).
 In addition, the failure to stand up to a Free Exercise challenge would also open the door for a challenge in West Virginia and Mississippi and possibly force those states to include a religious exemption in the future.
 Hope Lu, Note, Giving Families Their Best Shot: A Law-Medicine Perspective on the Right to Religious Exemptions From Mandatory Vaccination, 63 Case W. Res. 869, 887 (2013).
 321 U.S. 158, 166-167 (1944).
 Employment Div. v. Smith, 494 U.S. 872, 889 (1990).
 Caviezel v. Great Neck Pub. Sch., 739 F. Supp. 2d 273, 284-285 (E.D.N.Y. 2010). This is commonly known as the rational basis test. Under this level of scrutiny, the government must only show that the law is rationally related to a legitimate government interest and is generally a very easy test to satisfy.
 Workman v. Mingo County Bd. of Educ., 419 Fed. App’x. 348, 353-354 (4th. Cir. 2011).
 See generally Caviezel, 739 F. Supp. 2d at 283 (listing decisions finding that there is no constitutional right to a religious exemption and contrasting with cases implicitly holding such but do not directly address the point.)
 Brown v. City Sch. Dist. of Corning, 429 N.Y.S. 2d. 355 (1980).
 Id. To establish a clear and present danger, the court required that public health officials present evidence of existing cases of the disease which might infect the child if the vaccination is not required. In addition to this holding being contrary to other cases, it also missed the point of vaccinations providing a benefit despite not being specifically necessary at the time by eradicating the disease.
 494 U.S. 872 (1990). Smith established that a neutral law of general applicability is constitutional even if there are burdens on religious practices. So long as the law is not aimed at singling out religious practices for punishment or designed to interfere with specific religious practices, it will not be overturned as unconstitutional.
 For another understanding of the constitutionality of vaccines, see Lu, supra note 10. Lu argues that vaccines should be grouped in two types based on the communicable nature of the disease to be prevented and other factors. While this is an interesting argument, vaccines recommended as mandatory are a positive health benefit regardless of the nature of the disease. The goal of vaccines is not only to prevent the individual from getting sick but to eradicate a disease, as we have seen with smallpox and polio. While it may be argued that policy reasons to separate the vaccines are important, I believe that the nature of the disease does not affect the constitutionality of the vaccination as all vaccines create positive benefits for the public at large.
 See generally Vaccine Recommendations of the ACIP, Centers for Disease Control and Prevention, http://www.cdc.gov/vaccines/hcp/acip-recs/index.html (last visited May 1, 2015).
 See Jen Christensen & Nadia Kounang, Childhood Vaccine Are Safe. Seriously., CNN, http://www.cnn.com/2014/07/01/health/vaccines-for-kids-safe/, (July 1, 2014, 3:18 PM). See generally Vaccine Safety, Centers for Disease Control and Prevention, http://www.cdc.gov/vaccinesafety/index.html, (last visited Mar. 27, 2015)
 See generally Paul A. Offit, M.D., Autism’s False Prophets; Bad Science, Risky Medicine, and the Search for a Cure (2010) (noting that among others, Jenny McCarthy is one of those people credited with spreading false information that vaccines cause Autism, noting that she got her degree from the “University of Google”).
 Id. In addition, as recently as early February 2015, former Representative Dan Burton continues to press the message that vaccines cause autism. See Josh Feldman, Anderson Cooper, Ex-GOP Rep. Throw Down Over Vaccine-Autism Link, Mediaite (Feb. 5, 2015, 1:52 PM) http://www.mediaite.com/tv/anderson-cooper-ex-gop-rep-throw-down-over-vaccine-autism-link/.
 Herd immunity, also known as community immunity, occurs when such a large percentage of the population is immunized against a disease that even those not immunized receive protection as the disease does not get transmitted. This is what occurred with smallpox and polio to the point the diseases were eradicated. See generally Community Immunity (“Herd” Immunity), National Institute of Allergy and Infectious Diseases, http://www.niaid.nih.gov/topics/Pages/communityImmunity.aspx (last visited May 1, 2015).
 See generally Elizabeth Cohen and Debra Goldschmidt, Arizona Measles Exposure Worries Parents of At-Risk Kids, CNN, http://www.cnn.com/2015/01/30/health/arizona-measles-vaccination-debate/, (Feb. 2, 2015, 9:02 AM). In this case the father of a child too young to be vaccinated can no longer visit his child directly due to his lack of vaccination at a young age.