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.