Note: We were disappointed to see a recent opinion piece in which an admired legal professor claims the case law is settled, that parents have no right to make vaccine decisions for their children. We offered an opposing opinion to the Sacramento Bee, who published the original piece. They declined to print our opinion, so we’re sharing it with you here:
Parental Rights Case Law on Vaccines Is Not Settled
In his Sacramento Bee Op-ed of May 6, Professor Erwin Chemerinsky posited that “[t]here is no constitutional right for parents to refuse to have their children vaccinated.” But the issue is not nearly as cut-and-dried as he would have readers believe.
Two Lines of Cases
The subject of parental rights in the face of mandatory vaccination is not settled in one single set of cases. Rather, two lines of cases must be considered: parental rights cases, and mandatory vaccination cases.
In 2000, the U.S. Supreme Court recognized that “[t]he liberty interest…of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57 (2000), at 65. The Court cites a long list of cases covering a wide range of parental decision-making, dating back to 1923’s Meyer v. Nebraska.
By contrast, the Supreme Court case law on vaccine mandates underpinning Chemerinsky’s argument is sparse and outdated. A Note in the Harvard Law Review from May 2008 asserts that “[b]iomedical advances are pushing the foundational public health law case Jacobson v. Massachusetts toward obsolescence.” Yet according to the Congressional Research Service (“Mandatory Vaccinations: Precedent and Current Laws,” May 21, 2014), the extent of significant case law involves Jacobson v. Massachusetts (1905) and Zucht v. King (1922).
In Jacobson, the Court held that the police power of the state includes authority to mandate a life-saving vaccine in the face of a deadly outbreak. “The state legislature proceeded upon the theory,” the Court summarized, “which recognized vaccination as at least an effective, if not the best, known way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population.” The Supreme Court upheld the legislature’s decision.
This state power was extended by the Zucht decision to allow mandatory vaccination for public school attendance: “Long before this suit was instituted, Jacobson v. Massachusetts had settled that it is within the police power of a state to provide for compulsory vaccination.”
Like the opinion piece, neither case addresses the question of mandating vaccines for diseases, such as HPV, that cannot be spread through airborne particles. Sexually communicable diseases simply were not deliberated in Jacobson v. Massachusetts.
In addition, Chemerinsky claims “[p]arents do not have the right, no matter what their belief or religion, to put their children at risk of a communicable disease that is preventable and that sometimes has devastating consequences.” But this misstates the options.
Parents do not have a right to abuse or neglect a child; no one does. But vaccines have never been shown to be 100% safe or 100% effective. This is why vaccine package inserts are pages long and fraught with warnings. It is also why the Office of Special Masters of the U.S. Court of Federal Claims, or “vaccine court,” has paid out $1.7 billion in vaccine injury claims since 2006.
The vaccination decision involves balancing risks. And on the matter of parents balancing risks for their own children, the Supreme Court has already spoken.
“Simply because the decision of a parent is not agreeable to a child, or because it involves risks, does not automatically transfer the power to make that decision from the parents to some agency or office of the state.” Parham v. J.R., 442 U.S. 584 (1979), at 603.
Admittedly, the Parham case was not addressing vaccination decisions. Neither was Jacobson v. Massachusetts addressing vaccines for minor childhood diseases, sexually transmitted diseases, or non-communicable diseases. The vital point is that Supreme Court precedent exists on both sides to recognize that the balance between modern vaccine mandates and fundamental parental rights remains unsettled.