“Toward a Twenty-First-Century Jacobson v. Massachusetts”

Friday, 21st of October 2016

“Toward a Twenty-First-Century Jacobson v. Massachusetts”

From the Harvard Law Review

All readers will agree that we do not have smallpox epidemics of the kind reviewed by the Court in 1905. Not all readers will accept the view that hep B and HPV vaccines, both protective against cancer, should receive a different treatment from that accorded, in 1905, to the smallpox vaccine.

It is, of course, true that hep B and HPV infection can be prevented by sexual abstinence. In the 21st century, is this a practical public health intervention?

Excerpt below; full text is at http://cdn.harvardlawreview.org/wp-content/uploads/pdfs/a_twenty-first-century_jacobson_v_massachusetts.pdf

“Biomedical advances are pushing the foundational public health law case Jacobson v. Massachusetts towards obsolescence. The 1905 Supreme Court decision established the constitutionality of state compulsory vaccination laws when they are “necessary for the public health or the public safety.” But the case addressed issues of medicine, disease, and society that are increasingly irrelevant. Jacobson’s rationale has little to say about two recently developed controversial vaccines – the hepatitis B vaccine and the human papillomavirus (HPV) vaccine – and it will likely have even less to say about vaccines that are still in the pipeline. These vaccines are qualitatively different from their predecessors in that they are not medically essential to preventing the spread of disease. Vaccine law and policy – whether through common law, statues, or agency directives – must develop clear ways to recognize these distinctions.”