Compulsory Vaccination Regulations Should be Left to the States By Stephen Mckitt

Compulsory Vaccination Regulations Should be Left to the States


Stephen Mckitt

            In recent months, the outbreak of measles in southern California and other incidents like it have brought the issue of compulsory vaccinations to the forefront of the national news.[1] While all fifty have at least some requirements for vaccinations, no federal regulation requiring vaccinations exist.[2] With apparent danger of diseases such as measles and the obvious protections vaccinations afford communities from them, many have begun to wonder why the Federal Government has not stepped in and provided uniform regulations that would require children to be vaccinated. This question has began to be asked more as citizens have become increasingly aware of the ease of which those that are against vaccinations can gain an exemption from the mandatory vaccination laws of their state.[3] Despite this, whether vaccinations should be compulsory should be left to the states for two reasons. First, this form of the police power should be left to the states. Secondly, this issue has centered primarily on parents that have refused to vaccinate their children for various reasons and while the Supreme Court has recognized the states’ right to require vaccination in Jacobson, it has been reluctant to override the right of fit parents to make decisions for their children.

The Police Power

            The seminal case on the issue of state compulsory immunization, Jacobson v. Commonwealth of Massachusetts, is also important in understanding the reach of state police power on this issue.[4] In Jacobson., the court  considered  the constitutionality  of a state law that allowed a city or town board of health to require inhabitants to be vaccinated.[5] The statute was passed in order to prevent a smallpox outbreaks from spreading.[6]The court analyzed the statute as an exercise of the states Police Power, “a power which the state did not surrender when becoming a member of the Union under the Constitution.”[7] The states have to the freedom to exercise this power so long as it does not violate the Constitution.[8] According to James Hodge and Lawrence Gosten, in deciding the constitutionality of the statute the court analyzed the issue in four ways: the public health necessity of the statute, the reasonableness of the means used to achieve the public health objective, the proportionality of the health regulation in regard to the threat it is meant to prevent, and harm avoidance i.e. whether the measure itself poses a health risk to its subjects.[9]

The court in Jacobson concluded that the statute was a reasonable exercise of the state police power to promote public health.[10] The manner by which a state promotes public health is in the states discretion, so long as in doing o the state does not infringe on the U.S. Constitution.[11] It is telling that the court in Jacobson analyzed this issue as one of the state’s police power. The states are likely better equipped to understand the needs of their citizens. Also the four categories that the court viewed the statute under are better understood and constitutionally met at a state level, particularly the reasonableness of the means used and the proportionality of the regulation requiring the vaccination. In addition, as previously stated, all 50 states already have some form of vaccination regulation. While the issue of compulsory vaccination is a very serious one, the states have been handling the issue since 1905 and the federal government should continue to allow them to do so.

Reluctance to Override the Decisions of Fit Parents

            Much of the debate concerning the issue of compulsory vaccinations centers on parents who, in the face of a large amount of scientific evidence proving otherwise, believe that vaccinations would be detrimental to their children.[12] While some believe that these parents’ decisions should be overridden for the good of the many, the Supreme Court has long recognized that parents have a fundamental right to make decisions concerning the care custody and control of their children.[13] When the government is forced to infringe on a fundamental right of its citizens, it should do so carefully, proportionally, and in the most reasonable manner possible to achieve the objective. Additionally, the Court has held that there is a presumption that fit parents act in their children’s best interest when making decisions for them.[14] While data indicates vaccination is one of the human races greatest medical advances, it would be unfair to label every parent who decides not to get their child vaccinated as unfit. It would be very difficult to argue that parents electing to vaccinate their children are making a bad decision, however the Court has held that the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made.[15] So, the fact that electing to vaccinate a child is, in all likelihood, the better decision does not automatically give the Government the right to override the decision of a parent who decides not to vaccinate their child.

I recount these ruling not to argue that these parent’s right to raise their children trumps the public health concerns that have arisen with the reemergence of diseases like measles, which vaccinations had driven to the brink of extinction in this country. I recount these rulings simply to indicate that these parent’s rights are real, and if they must be infringed upon for the public safety of the rest of the community it must be done in a reasonable way. As my colleague Ms. Smith points out in her blog, many states have exemptions to their compulsory vaccination laws and many people are upset with the ease of which the exemptions are sometimes granted. These exemptions can be characterized as a comprise or balance between the fundamental right parents have to choose what they believe is best for their children, and the public health need stop the highly preventable spread of diseases for which vaccinations have been engineered. A blanket federal regulation mandating vaccinations would upset this balance that the states have created and open the Government up to Due Process claims from citizens across the country. It would likely be much easier for citizens to lobby their state legislatures for stronger vaccine regulation or a complete elimination of exemptions than it would be to lobby the entire legislative branch of the federal government.


            The point of this blog is not to argue against compulsory vaccination. Instead, it is to stress the existence of the rights of the individuals on both sides of this issue and how these rights can likely be better protected at the state level. While it is easy to say that parents that refuse to get their children vaccinated are unfit or misinformed, there are those among them that are simply concerned parents, and no one can be faulted for that.

[1] Maggie Fox, Disney Measles Outbreak Could Get Worse, Experts Warn, NBC NEWS


[3] Mariano Castillo, What Vaccination Exemptions Does Your State Allow, CNN (Fed. 4 2015. 5:01 P.M.),

[4] 197 U.S. 11 (1905)

[5] Id. at 12.

[6] Id. at 12.

[7] Id. at 25.

[8] Id. at 361.

[9] Allan J. Jacobs,  Is State Power to Protect Health Compatible with Substantive Due Process, 20 Annals Health L. 113, 128 (2011).

[10] Jacobson, 197 U.S. at 39.

[11] Id. at 25.

[12]Frank Bruni, The Vaccine Lunacy: Disneyland, Measles and Madness, The New York Times Sunday Review (Jan. 31, 2015),

[13] Stanley v. Illinois 405 U.S. 645, 651 (1972)

[14] Parham v. J.R., 442 U.S. 584,602 (1979).

[15]Troxel v. Granville, 530 U.S. 57, 72-73 (2000)


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