The measles outbreaks continue to spread, with New York City declaring a public health emergency and requiring people in four ZIP codes to have their children vaccinated or face penalties, including a fine of US$1,000 and or imprisonment.
Since September 2018, 285 measles cases have been reported in Brooklyn and Queens, mainly in neighborhoods where ultra-Orthodox Jews have chosen to not have their children vaccinated.
The Centers for Disease Control and Prevention, said that from Jan. 1 to April 4, 2019, 465 individual cases of measles have been confirmed in 19 states. This is the second-highest number of cases since the CDC declared measles eliminated in 2000; in 2014, 667 cases occurred.
Cases have still been occurring each year, often brought into the United States from international travelers. Officials believe that to be the cause of the outbreak in Rockland County, New York, where 168 cases were reported as of April 8, 2019.
But there are limits to what health care providers, public health officials and legislators can do. It is crucial to consider both the power – and the limits – of potential solutions that will provide education, medical care and protection for the public while still upholding principles of informed consent, parental decision-making and sustaining public trust.
As a professor who researches and teaches health law, public health law and medical ethics, I think it’s worth clarifying what states can or cannot legally do when responding to cases of communicable disease.
A right to refuse medical care
The law recognizes the right of an individual to refuse medical interventions. Health law has a strong history of recognizing bodily integrity: Adults can choose whether to accept or reject a proposed medical intervention, even in instances where public health authorities conclude a vaccine would benefit both the individual and society. The Supreme Court has recognized parents’ ability to direct the care and control of their children, including consenting or forgoing medical treatment for their child except in very specific circumstances.
In the 1905 Jacobson v. Massachusetts case, the Supreme Court upheld a state law delegating power to local health officials mandating that adults receive one smallpox vaccine in the midst of an epidemic or pay a fine (about $130 today). Under the concept of police power, states have a duty to enact laws that promote the health, safety and welfare of its residents. Public health authorities may offer vaccines as a method of prevention, but medical professionals, public health authorities and even courts may not legally compel a person to submit to a vaccine.
The Jacobson decision also set forth limits on police power, yet subsequent cases addressing vaccine mandates discarded these requirements, extending multiple vaccine mandates to school attendance for disease not in circulation and in the absence of an epidemic.
Deferring to respected scientific consensus as a means to justify forced medical interventions in the name of individual benefit and the public good has historically resulted in some of the most egregious constitutional and human rights atrocities in the U.S. The mass forcible sterilization during the eugenics movement is but one example.
The history of science and medicine further demonstrates the fallibility of commonly accepted medical knowledge, such as when Bayer introduced heroin as a safe, non-addictive substitute for morphine, or physicians prescribed Bendectin and thalidomide to relieve nausea, only to find these medications resulted in babies born with severe birth defects.
Public good, personal rights
The law is also quite clear that public health authorities and law enforcement may place restrictions on a person’s individual liberty – including religious liberty – in situations where a person’s actions pose a direct, immediate and compelling harm to others, such as using venomous snakes in religious worship or asserting a nonexistent “right” to use an illegal substance such as marijuana when operating a motor vehicle.
In public health law relating to communicable disease, this constitutes a very specific standard: A person must have a present disease, and this person’s actions must pose a direct threat to others.