Vaccination mandate unconstitutional, but did it have to be unconstitutional in the first place?

I’ve been writing about the need for a constitutional amendment banning mandatory vaccinations for a long time. About a year ago, at Heritage Foundation’s The View, I launched into a powerful essay attacking the latest …

I’ve been writing about the need for a constitutional amendment banning mandatory vaccinations for a long time. About a year ago, at Heritage Foundation’s The View, I launched into a powerful essay attacking the latest effort to allow parents to opt out of immunizations on the basis of a childhood disease — hepatitis B. I argue that such an effort was illegal when it was enjoined by the U.S. Supreme Court in 1991, and that it will be illegal yet again.

I am surprised to see a group of serious legal scholars disagree with me so strongly.

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In a recent article for The Volokh Conspiracy, “Choosing No Vaccine?,” Jeremy Schott takes a look at a case brought by the Knights of Columbus, challenging New York City’s mandatory hepatitis B immunization policy for all employees except teachers.

The child who the children may be exempt from the immunization requirement has been vaccinated with no apparent reaction. In a 2002 concurring opinion, Justice David Souter, joined by Justice Anthony Kennedy, said: “No child should be forced to make an untimely death agonizing choice between—if necessary—‘vaccinating that child and not having that child receive the vaccine, or allowing the child to die.’ Absent obvious grounds for violation of that right, there is no basis in law for this decision.”

So this was moot from the get-go. Yet Schott fails to understand this fundamental point.

In 2010, the city’s Board of Health weighed in on the lawsuit against the Hepatitis B immunization mandate, reversing a prior opinion of the Health Department and reasoning that mandatory vaccination of teachers is a permissible exception to the Child-Parent Separation Act (CPSA). In response, the U.S. Court of Appeals for the Second Circuit also reversed the Health Department’s 2012 judgment. It emphasized that part of the CPSA, § 22(e), included a “drain on federal appropriations,” the consequences of which “are particularly acute in large and diverse urban school districts, with the public health requirements of educating tens of thousands of non-English speaking children.”

This interesting and important case could be remanded to the Manhattan federal district court for retrial if the Supreme Court chose to remand it or if the high court chooses to hold that the CPA has no such intent and therefore the mandate is unconstitutional. Given the numerous decisions against mandatory vaccination, it makes a lot of sense that the Supreme Court wants to do more due diligence on this one.

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