Drew Trimble is a featured author for The National Law Review where he wrote an article titled...
John Tocci is a regular contributor to the Massachusetts Bar Journal where he wrote an article titled...
Jeremy Byellin is a writer for the Thomson Reuters Legal Solutions Blog, where he wrote an article...
J. Craig Williams is admitted to practice law in Iowa, California, Massachusetts, and Washington. Before attending law...
| Published: | May 1, 2015 |
| Podcast: | Lawyer 2 Lawyer |
| Category: | Medical Law |
Credited with saving millions of lives per year, few health programs can boast the success of vaccinations. Even for those who, for health reasons, can’t be inoculated, vaccines provide a type of community immunity by preventing dangerous outbreaks in densely populated areas. The Centers for Disease Control and Prevention call vaccinations the greatest public health achievement in 100 years. But does that mean we should make vaccines mandatory? In this episode of Lawyer 2 Lawyer, host J. Craig Williams interviews Drew Trimble, John Tocci, and Jeremy Byellin. Together they discuss federal authority and the police power of the states when it comes mandatory vaccinations and quarantine. Tune in to hear what exemptions exist for citizens opposed or unable to comply.
Drew Trimble is a featured author for The National Law Review where he wrote an article titled “The Law of Mandatory Flu Shot Requirements.” In addition, he is an associate at McBrayer, McGinnis, Leslie & Kirkland, where he focuses on general litigation, employment law and criminal defense. Prior to that, he worked for the United States District Court, Eastern District of Kentucky as a law clerk to Judge Gregory F. Van Tatenhove. Among the numerous issues he handled there were criminal law, employment law, contract disputes, medical malpractice, and civil rights.
John Tocci is a regular contributor to the Massachusetts Bar Journal where he wrote an article titled “Mandating flu immunization of health care workers: Not the best medicine.” In his practice life he handles a wide spectrum of employment law matters and manages his firm’s employment counseling and litigation practice. Finally, John is the current chair of the Massachusetts Bar Association Labor & Employment Section Council.
Jeremy Byellin is a writer for the Thomson Reuters Legal Solutions Blog, where he wrote an article titled “The Legal Status of Mandatory Vaccinations.” He is a practicing attorney who focuses on family law and estate planning. He resides in Minneapolis, Minnesota, with his wife, who is also an attorney, and two children.
Lawyer 2 Lawyer: Mandatory Vaccines vs. Individual Rights – 5/3/2015
Advertiser: Vaccinations study a world of goodness. You look at countries where they don’t have mandatory vaccination programs and they have just enormous health problems compared to the United States. So when a state says that we’re going to allow folks to opt out of mandatory vaccination programs, then the battle becomes okay, what about the opt out program?
Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
Drew Trimble: Thank you, thank you for having me.
John Tocci: It’s good to be here.
Jeremy Byellin: Thank you very much.
Drew Trimble: Well Craig, in response to your question, in full disclosure I am not a doctor or a scientist, but from a strictly policy matter, I would probably categorize myself as more pro-vaccine. Vaccine programs have done a good deal in eradicating certain diseases like smallpox and controlling the raid of vaccine preventable diseases. I read recently that the CDC considers vaccination as one of the top public health achievement in the last hundred years and so I think a lot of good has been done. I really approach this as more of an advisory role to clients in sort of the second part of your question in terms of whether mandatory programs are appropriate. I think that really has a good deal of dependence on the nature of the entity whether it’s a public entity, whether it’s a private hospital, whether it’s a school; I think it has good deal to do on who you are and the nature of your circumstances as to whether a mandatory policy is actually a good idea or not.
John Tocci: Yeah, I’ll just follow up on Drew’s point, I agree with him wholeheartedly. I think if probably 80 or 90 percent of the populace doesn’t think too much about vaccinations, we just go ahead and do it and don’t consider themselves pro vaccine or anti vaccine. So I certainly don’t think that I follow to either pro or anti vaccine, it sort of depends on the circumstances and certainly I’ve got all my vaccinations and my kids have all their vaccinations and I have never objected to any kind of vaccination. Much of the controversy, if there is any, I think revolves around the question of the efficacy of vaccines. So in my view, I would be anti mandatory vaccine of healthcare workers, for example, although I’m certainly pro vaccine in other areas outside of the flu vaccine.
Jeremy Byellin: Sure. Although I’d probably describe myself as pro-bono vaccination, I wouldn’t necessarily use the term pro vaccine to describe my views as I would maybe pro-scientific method. There really hasn’t been a ton of verifiable scientific data support of the anti vaccine movement’s position that risks of vaccine that weigh the benefits. If such data every materialized I would definitely consider it and weigh it against every other data out there. But as it stands right now, as the two guests have said that there’s definitely been a lot of advances in public health because of vaccines. And I wouldn’t necessarily think across the board for every single vaccination that ever comes out, but the general matter, yeah, vaccines are probably just a great advancement in public health and I’m generally in support of people getting – not necessarily mandated – but just of vaccination, people and kids getting vaccinated. And as far as a quick history of mandatory vaccines and the law and that kind of thing, the very first law was actually from the city of Boston, and they mandated the smallpox vaccine by city ordinance in 1827 and that was actually for school children, not for adults. And several of the cities within the state followed and eventually the state itself passed a law mandating vaccination against smallpox statewide in the city of Massachusetts in 1885. Most other states followed suits. At a federal level, it wasn’t so much mandating like it was different policies encouraging vaccinations. It was all just targeted towards smallpox, and the vaccine was responsible for the elimination of smallpox. And the mandated vaccine laws for smallpox were the two major Supreme Court cases involving mandatory vaccine laws where challenges came from. The first one was 1905’s Jacobson v. Massachusetts and that was about a Swedish immigrant named Henning Jacobson, who during an outbreak of smallpox in Cambridge Massachusetts, refused to get the vaccination. He had some medical concerns but he didn’t actually qualify for the medical exemption that existed at the time. So he was charged and fined $5, which is a little over $130 by today’s standards, and challenged it and the Supreme Court disagreed with him and said within the state’s full power to regulate the public health and safety. The issue of whether the state can impose the same requirement on a person under age 21, was addressed 17 years later in Zucht V. King, also by the Supreme Court, and essentially was basically the same thing where in order to be able to go to school, the children needed to present a certificate of vaccination and the court upheld that requirement saying, again, this is within the state’s rights under the Constitution to regulate the public health and safety of the state. The current laws that are on the books in most states are not the result of the smallpox vaccination movements and requirements, but of the measles outbreaks in the 1970’s. And I’ll get into that later in the program, I’m sure, but every state has something on the books for mandatory vaccinations for school children.
Drew Trimble: Well I think it is a common police power that the government exercises. That’s the power by which a state – and in this case we’re really talking about states because each state has its own set of mandatory vaccination laws. It’s not necessarily federal program, although the CDC certainly counts the efficacy of vaccinations and they encourage the states to adopt mandatory vaccination laws. I think what the case law indicates is that the state certainly has the police power to mandate vaccinations, and typically we’re talking about school children. But the exercise of police power in most circumstances, it’s got to be tempered. Because what’s your balancing against that police power is the right of Americans to privacy to their own bodily integrity and recognize parental rights to dictate the health care choices, within reason, for their children. So it really is a balancing act and I think what we see in most states, I think almost every state, save West Virginia and I think one or two more – and maybe my co panelists can chime in if they know the states off the top of their heads. But I think almost every state provides some kind of an exemption that allows parents to opt out of mandatory vaccination programs, either on religious or philosophical grounds. So what we’re seeing in the lower courts and have seen in the past many years – but certainly there’s been an uptake in litigation the past 10 or 15 years – is battles over those specific exemption laws. So when a state says that we’re going to allow folks to opt out of mandatory vaccination programs, then the battle becomes, okay, what about the opt out programs? Because the programs, the opt outs, have been interpreted very broadly by the courts. For example, there was a case in which a Jewish family decided they didn’t want their children vaccinated. And even though there was no particular facet of Judaism, nothing they could specifically cite to which dictated against vaccination laws, the court held in favor of the family and held up because it was a sincere religious belief that the family could object on those grounds, even though they couldn’t point to a specific tenet of their religion that precluded vaccinations. So we’re seeing a battleground in states where exemptions have been adopted and in those states where no exception is allowed – that has been allowed under police powers as well. So states can have a mandatory vaccination program without any kind of opt out as well.
Drew Trimble: Beyond test there are a number of those. There are a few that seem to be tried and true methods that you can at least get some traction in court on these issues. I know Jeremy’s very well-written article, he has some very good empirical support for the numbers of state to ascribe and allow these kinds of exemptions for people to raised these objections. Probably the most commonly raised objection in exemption would be the held medical exemption. That’s actually in the seminal case itself, Jacobson. It was mentioned earlier in the recitation of historical precedent, the Judge Harlan and his opinion. He mentioned that there are some cases in which somebody’s own bodily hell may counsel against requiring them to be able to submit to the vaccination. And that we see in most of the states will have an exemption for health and medical exemptions and that seems to be something that’s available to most people. As we mentioned, there’s generally a religious exemption that’s available to people under the free exercise clause that also could be available under most of the state laws, have some sort of provision, that you could get an exemption for the mandatory policy if you have some sort of sincerely held religious exemption. So as you heard, courts don’t like to dabble into whether somebody’s religious objection is sincere or not very often. There’s an interesting case, Chenzira V. Cincinnati Children’s Hospital, in which a court and a Southern district of Ohio heard an argument from someone who felt that they are vegan practices were closely held and sincerely held that it was very close to religious belief or philosophy. And the Ohio judge allowed that over a motion to dismiss and ultimately the case settled. And so there’s another really interesting case, it came out 2015 in New York that went to the 2nd Circuit, Phillips V. City of New York, where there were some folks who under the basis of their religious beliefs opted out of the New York law policy for vaccination of school children. And there was a chickenpox outbreak at the school and so under the school policy, they were required not to come in, they were sent home. And so the religious exemption is usually available, but sometimes there could be some negative consequences to that as well. Another interesting one popped up in a case called Mason Hospital, and the folks who were alleging their exemption or imposing a mandatory vaccination were actually allowed to be exempted from that vaccination requirement because there was a collective bargaining agreement provision that protected it from doing that. There’s also some provision in some state laws for just general philosophical agreements, I know West states allow that. But one thing that seems to be generally true is that it generally doesn’t work, just to say I don’t like this or I don’t think that it is an effective way to deal with the problems. In the recent 2015 2nd Circuit case, this is the quote: Plaintiffs argue that growing body of scientific evidence demonstrate that vaccines cause more harm than society than good. But Jacobson made clear, that is in termination of the legislature, not the individual objectors. So health and medical objections, religious objections, perhaps provision in a collective bargaining agreement – those are the kind of things that employees are going to be able to raise, citizens are maybe going to be able to raise. Sort of the old Brandeis Brief of this doesn’t work or this isn’t a very good idea. It hasn’t gotten much traction and Jacobson itself seemed to think that that was in the provinces of the state legislatures rather than individual objectors.
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Drew Trimble: Well you heard a little bit about this in terms of the ebola issues that came up in the news recently and you’ve also had these issues coming up with other various vaccine control types of diseases. The states have procedures that are in place and Jacobson itself provides, in some ways, people who are coming back from a place where they might have contracted some sort of disease and allows for quarantined procedures or other vaccination type procedures as well. And I think that this is basically and primarily a state power type of issue. You can see with the CDC, with the secretary of the Department of Health and Human Services, there are programs that are in place when there’s international exchange when people are coming in from other countries. There are some procedures in place that try to account for those particular issues.
Jeremy Byellin: Well the right to travel is certainly in the US Constitution for much more protections for interstate travel than there will be for international travel. As far as travelling internationally, there are a lot more restrictions the government can place on distance traveling abroad and coming back into the country. It is a right that a subject to whatever the government wants to do, I think there’s a case that established this I think in 1965, Zemel V. Rusk, where that case involved the restrictions for passports to travel to Cuba. And basically the US Supreme Court established that it’s only subject to rational basis via the right to international travel. So the government could very much in theory require any assistance traveling abroad to become vaccinated before they left the country. Whether that actually would ever happen is unlikely, but they could, in theory, legally do that. I think there would be some other practical problems like with having certain vaccines where there aren’t just enough numbers of to vaccinate everybody leaving the country. But they very well could require any assistance leaving the country to become vaccinated. Any citizens coming back into the country, they’re allowed to quarantine as we saw with all of the ebola cases that came out and everything. That the people who they thought had ebola would have a high infection rate of ebola were quarantined when they first got back in. And I don’t think that there’s going to be very many courts that are going to find that constitutionally objectionable just because the court’s allowed to give the government a lot more difference when it comes to public health and safety, national security, those kinds of issues; the individual right to not have a needle poked in you or be kept in a medical facility for a couple weeks ahead of time.
John Tocci: Well I think what we see in the law is the federal government has the compelling interest to protect the borders including who comes into the country. So when it comes to US citizens, the power to quarantine is a pretty broad power, it’s been used for a long time, it’s never been successfully challenged. So the government can certainly quarantine US citizens who are returning from travel from other parts of the world until we are satisfied that the person’s not contagious, they don’t have some type of deadly disease, and of course we’re speaking in the context of ebola. And we’ve seen this for decades and longer where there are stricter examinations of citizens returning from travel from other parts of the world. It happens all the time and it’s certainly happening now with travel from West Africa and other areas where ebola is prevalent. The government can certainly require closer examination or quarantine of returning citizens. The government has a much broader power to restrict entry and preclude entry to non citizens of the United States, and again, something that has never been successfully challenged if you’re coming into the United States and you’re a non citizen. Whether it’s for a visit or to immigrate, the government, using its police powers can certainly turn you away from its borders if it believes that you’re carrying this certain disease or you have not been properly immunized that it has a reasonable basis for doing so. So in getting back to a point made earlier, once you leave the United States to travel to another country – and listeners should be clear that all bets are off – US laws don’t apply to entry into other countries. Once you leave US territory and you’re on foreign soil, entry into any other country can be premised upon particular laws of that country. We have no special rights as a citizen of the US when it comes to setting foot in a different land.
Jeremy Byellin: Well the biggest reason is because these are considered police powers under the regulation of safety and welfare of the state’s visionary; which is a power specifically given to the states by the Constitution. So the federal government as they start managing stuff at the state level about mandatory vaccinations and stuff with the school entry and that kind of thing, they would – unless under a base consent – they would actually be violating the Constitution and the state’s authority to regulate these things. So the reason why the states do this is because that’s one of their primary powers. It’s along the same lines as having those that patrol or the statewide police force. It’s in the same category of health and regulation of the state. That’s one of the most basic Constitutional provisions as far as state authorities go.
John Tocci: Let me pose a question to you. Don’t you think that under the Commerce Clause powers of the federal government that the feds could take over immunizations entirely from the tates? I think it’s a fact of the matter that at the time immunization programs started in the US, it was a time when the federal government didn’t wield much power at all. And there was really no Commerce Clause. The Commerce Clause was there but the federal government didn’t rely on the Commerce Clause from forms of the many federal laws in the 1800’s when many of these programs started. So to me it seems just that by default, the states have always run immunization programs but I don’t know that any of us can really deny that the Commerce Clause the federal government could mandate and take over these programs. I’m interested in my fellow panelists’ query.
Drew Trimble: In preparation for our talk today I reviewed a little white paper that the Congressional Research Service put together and sure enough, the last heading of that discusses the role of the federal government. And that congressional white paper, they sort of surmise that under the Commerce Clause that they would have power and the Public Health Services Act would have the power to do most of the things that we’ve talked about. To deal with military issues, to deal with people coming in to going out of foreign countries, immigration into the country. That in association with our commerce power and our ability to regulate commerce in that way, certainly there’s a much broader power that would have existed in 1905. When Justice Harlan’s was writing, there certainly would be, whether or not the argument would be made that there should be, more federal power to act in this area under the Commerce Clause. And I suspect that many in the federal government would say that in an emergency situation or in a situation affecting immigration or other border-related issues or military-related issues and issues that even potentially touch interstate commerce, that there be some federal power that would be able to intervene in addition to the state police powers which is where it has traditionally been relegated and thought to had been vested in the precedent of Jacobson and other places.
Drew Trimble: I’ll close by saying I think there’s been a lot of good done by vaccination programs. But I would encourage those of you who are listening, who are advising clients and who are, yourself, thinking about adding in a mandatory flu policy that you may ought to give some consideration as to the nature of your situation, whether that’s going to be the most effective way for you to go. And I really encourage that before doing that, to sit down, write up a policy that sort of explains the exemptions that you’re willing to provide, explains why you’re going to be implementing this practice, and then provides a procedure for folks who are maybe religiously opposed, medically opposed, philosophically opposed, can follow in order to recognize that exemption in the workplace. So I think that it can be good and be helpful in your particular business but should be exercised to some care because people have very strong feelings about these particular issues and so you want to make sure that you take the legal precautions necessary to protect you, your business and your clients. So again, my name is Drew Trimble. You can get in touch with me at [email protected], or check out our employment law blog at www.McBrayerEmploymentLaw.com.
John Tocci: I’ll follow up on what Drew had to say on dealing with the influenza vaccination and that is when you’re talking about the flu, you’re talking about more or less a non-deadly disease. Certainly one that can affect those with decreased ability to fight infection, fight disease, than help the Americans. But my article that I wrote a couple of years ago for the Massachusetts Bar Journal focused on mandatory programs for health care providers, which I opposed mandating that health care providers can help vaccines for a number of reasons. I think it doesn’t have tremendous efficacy and the illness we’re talking about certainly is not as serious as measles or even more serious diseases. Voluntary programs can be quite imaginative and they can be quite successful. More successful, in fact, than mandatory programs. When it comes to other types of vaccination programs, certainly in the states that allow religious objections, those objecting need to tread lightly and we’d be well off advising our clients to think very carefully about the public policy behind mandatory vaccination laws and whether something is truly objectionable. Even my knowledge with Christian Science Church is that they do not ultimately oppose traditional medication. There is no policy or dictate that Christian scientists do not vaccinate their children or do not vaccinate themselves. So my advice is to tread lightly and think carefully. Vaccinations have done a world of good in this country and you look at countries where they don’t have mandatory vaccination programs and they have just enormous health problems compared to the United States. I can be reached at [email protected] and our website is TocciLee.com. And our firm is Tocci & Lee.
Jeremy Byellin: I don’t have a lot, maybe most exactly the same advice as our two other guests just stated, but as far as a more general policy matter, the anti-vaccination movement is not really losing steam at this point and so there’s going to be more outbreaks of vaccine-preventable diseases like we saw in California last year. And I think that this issue is going to become more and more prevalent. And there will definitely be more laws in state level about even cutting down some of these exemptions that have been available by the anti-vaccination movements, largely. And so it will be an issue that will be in legal flux for a long time. It’s really hard to say where the direction that the laws are heading here. California is considering a bill to eliminate the philosophical exemption to mandatory vaccinations, so we’ll see if that actually is successfully passed and the other states will follow suit. I can be reached by email at [email protected]. And if you want to read any other blogs that I’ve written for the Legal Solutions blog, the website is Blog.LegalSolutions.ThomsonReuters.com.
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