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Federal and state public health authority and mandatory vaccination: Is Jacobson v Massachusetts still valid?

Lewis W. Marshall Jr, MS, MD, JD, LLM, Brenda L. Marshall, EdD, APN, Glenn Valladares, MD, MBA

Abstract


Novel H1N1 influenza virus infected more than 43,000 people, killed 353 and spread to more than 122 countries within a few months. The World Health Organization declared a stage 6 worldwide pandemic. Healthcare workers and hospitals prepared for the worst. Federal and State regulations provided the legal framework to allow for the preparation and planning for a pandemic. One State had mandated both seasonal and Novel H1N1 vaccination of all healthcare workers in an effort to reduce transmission of influenza in healthcare facilities.The US Supreme Court decided in 1905 that the police power of the State permitted a State Department of Health the leeway to mandate vaccination in the face of a contagious disease. Law suits were filed, and a temporary injunction barring mandatory vaccination was entered by the court.While awaiting a court hearing, the mandatory vaccination regulation was rescinded because of the shortage of both seasonal and H1N1 vaccine. Based on the current state of the pandemic and the shortage of vaccination, it is possible that the US Supreme Court would uphold mandatory vaccination in a pandemic.

Keywords


pandemic, mandatory vaccination, public health authority, novel H1N1 influenza virus

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References


Novel H1N1 Flu: 2009 H1N1 Early Outbreak and Disease Characteristics. CDC H1N1 Flu. Available at www.cdc.gov/h1n1/ surveillanceqa.htm. Accessed October 25, 2009.

World Health Organization: Global alert and response (GAR) current WHO phase of pandemic alert. Available at www.who.int/csr/ disease/swineflu/4th_meeting_ihr/en/. Accessed October 25, 2009. See also current WHO phase of pandemic alert. Available at www.who.int/csr/diease/avian_influenza/phase/en//.

National Terror Alert: A dire prediction for swine flu H1N1 virus. Available at www.nationalterroralert.com/updates/2009/07/21/ a-dire-prediction-for-swine-flu-h1n1-virus/. Accessed October 25, 2009.

Health Care Personnel Influenza Vaccination Requirements— Emergency Regulation: Amending Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations Part 66 of the State of New York to add Part 66-3 requiring mandatory influenza vaccination of all health care personnel. Available at www.health.state.ny. us/regulations/emergency/2009-08-13_health_care_personnel_ influenza_vaccination_requirements.htm. Accessed October 25, 2009.

NY Times: Mandatory flu vaccination for N.Y. health workers is criticized. NY Times. Available at www.nytimes.com/2009/10/14/ health/policy/14vaccine.html. Accessed October 25, 2009. See also mandatory flu vaccination splits workers. Newsday.com September 27, 2009. Available online at www.newsday.com/ long-island/mandatory-flu-vaccination-splits-workers-1.1481242? print=true. Accessed October 25, 2009.

U.S. Const. Art. I §8.

Galva J, Atchinson C, Levey S: Public Health Strategy and the Police Powers of the State. Public Health Reports. 2005; 120 (Supplement I, 24): 20-27.

42 USC Chapter 6a.

21 USC 301.

42 USC Chapter 7.

The Robert T. Stafford Disaster and Emergency Assistance Act: PL 93-288, Approved May 22, 1974 (88 Stat. 143).

Jacobson v Massachusetts 197 U.S. 11 at 33.

Public Health Milestones in Massachusetts: Available at www.publichealthmuseum.org/milestones%20in%20Public%20Health. pdf. Accessed October 25, 2009. Listing of public health milestones from 1630 to 2006.

Report of the Committee on Compulsory Vaccination: Also, a supplementary report on the Efficiency and Safety of Vaccination, Public Health Papers and Reports. 1883; 9: 453.1. Available at ncbi.nlm.nim.nih.gov:80/pmc/articles/PMC2272482/?page=1. Accessed October 25, 2009.

The New York Times: New York Times. Available at http://query. nytimes.com/mem/archive-free/pdf?_r=1&res=9904E4DC1E3EEF33 A25750C1A9679D94649FD7CF. Accessed October 25, 2009.

Salmon D: Mandatory immunization laws and the role of medical, religious and philosophical exemptions. Available at www. vaccinesafety.edu/exemptreview101503.pdf. October 2003.

42 USC 5170b (Stafford Act Section 403).

42 USC 264.

21 USC 301, §564.

42 USC 1320b-5, §1135.

42 USC 1382a, §1612.

President Barack Obama: Declaration of a national emergency with respect to the 2009 H1N1 influenza pandemic. Signed October 24, 2009 by President Barack Obama.Available at www.whitehouse. gov. Accessed October 28, 2009.

42 USC 1395dd.

United States Public Law 104-191, August 21, 1996, Health Insurance Portability and Accountability Act of 1996.

Waiver or Modification of Requirements Under Section 1135 of the Social Security Act: Available at www.flu.gov/professional/federal/ h1n1_1135waiver_10272009. Html. Accessed October 28, 2009.

United States Constitution (Article 1, Section 8, Clause 3).

Legal Authorities for Isolation and Quarantine:Available at http:// www.cdc.gov/quarantine/AboutLawsRegulationsQuarantineIsolation. html.

Hodge JG: Implementing modern public health goals through government: An examination of new federalism and public health law. J Contemp Health Law Policy. 1997; 14: 93-126.

Zucht v. King, 260 US 174 (1922).

Jacobson v Massachusetts 197 US 11 (1905).

Daines RF: Mandatory Flu Vaccine for Health Care Workers, Commissioner Tells Health Care Workers: Mandatory flu vaccine is in the best interest of patients and workers. Available at www. health.state.ny.us/press/2009/2009-09-24_health_care_worker_ vaccine_daines_ oped.htm. Accessed November 1, 2009.

Testimonies/Reports, Mandatory Influenza Immunization of Healthcare Personnel: On behalf of its 37,000 registered nurses the New York State Nurses Association continues to oppose forced immunization as a condition of employment. Available at www. nynsa.org/advocacy/testimonies/mandated_shots2.htm. Accessed November 1, 2009.

Judge halts flu vaccine mandate for health workers, New York health care employees won’t be forced to get H1N1 vaccine . . . For now. October 16, 2009 US/Eastern. Available at wcbstv.com/ breakingnewsalerts/mandatory.h1n1.vaccine.e.1252672.html. Accessed November 1, 2009.

Chan S, Hartocollis A: Paterson suspends flu vaccination rule. New York Times. Available at cityroom.blogs.nytimes.com/2009/10/ 22/paterson-rescinds-flu-vaccination-rule/.Accessed November 1, 2009.




DOI: https://doi.org/10.5055/ajdm.2010.0013

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