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VACCINATION

Vaccination is the introduction into the body of a vaccine to prevent disease. In the late nineteenth and early twentieth centuries a number of states made smallpox vaccination compulsory. The Supreme Court upheld the constitutionality of such a law in JACOBSON V. MASSACHUSETTS (1905), and Jacobson 's continuing vitality as a precedent is routinely assumed.

The Jacobson opinion was written by Justice OLIVER WENDELL HOLMES, who regarded the case as he regarded LOCHNER V. NEW YORK (1905), decided later the same year over his dissent. For Holmes, the question in both cases was whether the legislative judgment had passed the bounds of reason. For the majority who found a violation of SUBSTANTIVE DUE PROCESS in Lochner's sixty-hour limit on bakers' weekly work but validated compulsory vaccination, the difference surely was that they saw vaccination as a soundly based health requirement. Yet the subsequent collapse of substantive due process as a constitutional limit on ECONOMIC REGULATION should not be taken as a return to the Holmes view equating invasions of the body with the general run of restrictions on liberty. Undoubtedly the standard of judicial review in such cases today is far more demanding than it was for Holmes in Jacobson.

A patient who refuses medical treatment, for example, surely has a constitutional right to do so, founded on the liberty protected by the due process clauses, absent the most compelling justification for state-ordered intrusion into his or her body. The right may come to be described in the privacy language used to explain the abortion decisions, which really rest not so much on privacy in its ordinary sense as on a woman's control over her own body and her own life. Similarly, the decisions involving invasion of the body to extract blood or other EVIDENCE for use in detecting crime make clear that such invasions must pass the test of strict judicial scrutiny of their justifications. Claims of RELIGIOUS LIBERTY may be added to the constitutional mix, as when a Jehovah's Witness refuses a blood transfusion, but with or without that ingredient the constitutional claim to autonomy over the body is strong.

The strength of the countervailing governmental interest in compelling vaccination would, of course, depend on the degree of danger to the public posed by unvaccinated persons. Now that smallpox is approaching worldwide eradication, the constitutional claim of a latter-day Jacobson would be far more substantial. Many doctors now recommend against smallpox vaccination, because—as Jacobson himself argued—the procedure involves a risk of contracting the disease. Given the vastly reduced public health justification for the inoculation, it is by no means clear that a compulsory smallpox vaccination law would survive constitutional challenge today. Undoubtedly, however, a state could constitutionally require vaccination for other diseases that significantly endanger public health.