Vaccine Mandates, Infectious Disease, and Personal Liberty
By: Caitlyn Gilley Obolsky, ESQ
In 1905, the Supreme Court decided a case involving a New York law that attempted to limit the number of hours that bakers could work. The legislature alleged that the conditions weren’t particularly healthful or conducive to the bakers themselves, as opposed to their employers. Modern readers may be surprised to hear that the Court struck the law as an unconstitutional interference with the bakers’ liberty to contract.
The resulting standard remained in place until 1938, when the Court declared its intention to focus on issues relating to “discrete and insular minorities,” and those cases relating to or affecting the Bill of Rights. United States v. Carolene Products Company, 304 U.S. 144 (1938) FN4.
The precedent set in Lochner v. New York, 198 U.S. 45 (1905), however, was never overturned, and was referenced at least as recently by Chief Justice Roberts in his dissenting opinion in Obergefell v. Hodges, 576 U.S. ___ (2015)
Lochner was the first case to denote a standard for state actions related to health and welfare. The court asks whether the law represents, “a fair, reasonable and appropriate exercise of the [police power], or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty.” Lochner v. New York, 198 U.S. 45, 56 (1905).
With any and every law that the state or federal government attempts to ask, liberty is always at stake. Once a choice is mandated, there can be no alternative solution.
This whittling away of freedom is the most obvious in healthcare mandates, such as the mandatory vaccination laws that have been recently passed and/or proposed across the country.
In fact, I believe that the greatest problem with these laws–not that there are few problems, there are in fact many– is that there is no consideration of whether these laws are fair, reasonable, or appropriate.
In fact, they are unreasonable, unnecessary, and arbitrary.
Take Tetanus for example. According to the CDC (http://www.cdc.gov/vaccines/pubs/pinkbook/downloads/tetanus.pdf) , there are an average of 29 cases of Tetanus per year in the entire United States. According to the 2014 U.S. census, the current population is 319.8 million people. Additionally, tetanus cannot be communicated from person to person, but rather, is contracted from a spore, typically located within a heroin needle or rusty nail. And yet, failure to succumb to the combined vaccination that contains Tetanus, for any reason whatsoever in California, means that your child will not be allowed admission into any school whatsoever. If this does not meet the definition of unreasonable, unnecessary, and arbitrary, then I’m not sure what does.
Furthermore, existing U.S. law protects the rights of infected individuals to work and attend school. For example, in another Supreme Court case, School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987), an elementary school teacher that had tuberculosis filed suit after she was dismissed, claiming that the school board had made the decision based upon her illness, in violation of federal law.
The Court stated that, “[t]he fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases.” And further, “[s]uch exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence and a determination made as to whether they were “otherwise qualified.” Arline. Rather, they would be vulnerable to discrimination on the basis of mythology…” And in this case, the Court was referring to individuals that are actually in fact inflicted with a disease.
The Supreme Court recognized in Arline that a significant risk of transmission was a legitimate concern which could justify exclusion if the risk could not be eliminated through reasonable accommodation; however, it soundly rejected the argument that exclusion could be justified on the basis of “pernicious mythologies” or “irrational fear.” Id. at 1129-30 & n. 12. See also, Ray v. School Dist. of DeSoto County, 666 F. Supp. 1524 at 1535 (M.D. Fla. 1987); see also, Chalk infra). In other words, an employer could not fire a teacher without showing that a reasonable accommodation in relation to that infectious disease could not be achieved. And further, excluding a teacher from the classroom, on the basis of such infectious disease, could not be done so on the basis of irrational fear or otherwise incorrect information in regards to that infectious disease with which the individual is presently infected with, without violating the Constitution.
In regards to individuals afflicted by infectious diseases, federal courts have ruled in favor of individuals afflicted by the very same infectious diseases for which vaccinations are required under California’s new law. For example, in New York State Ass’n of Retarded Children v. Carey, 612 F.2d 644 (2d Cir.1979), the Second Circuit court of appeals held that the affliction of Hepatitis B is legally insignificant within a classroom setting. The court held that, “the Board was unable to demonstrate that the health hazard posed by the hepatitis B carrier children was anything more than a remote possibility. There has never been any definite proof that the disease can be communicated by non-parenteral routes such as saliva. Id. at 650.
Furthermore, along the same lines of a lack of communicability of Hepatitis B from infected child to child, the court found that, “the activities that occur in classroom settings were not shown to pose any significant risk that the disease would be transmitted from one child to another.” New York State Ass’n of Retarded Children v. Carey, 612 F.2d 644, 650 (2d Cir.1979).
Thus, not only is the fear of potential infection by children that are currently infected with Hepatitis B no more than a remote possibility, but the only logical conclusion is that the threat posed by children who are NOT infected with Hepatitis B, and choose to forego that vaccination, even less remotely likely to maybe, possibly, somehow, ever infect anyone else with the disease that they don’t even have. And yet HepB is required at birth, and not receiving a Hepatitis B shot will preclude children from any daycare or school setting in the state.
Additionally, federal law, subsequent to the application of Arline and other statutes, protects the ability of children whom are carriers of Hepatitis B to attend school. Thus, it is abundantly clear that under federal and state laws, children infected with Hepatitis B may attend school, whereas children whose parents wish to decline a vaccination for the disease, may not attend. Again, I implore the reader to consider whether this law and others like it are unreasonable, unnecessary, and arbitrary.
Lastly, in another case involving an infected individual, this time involving a California teacher infected with AIDS, the Ninth Circuit court of appeals protected his right to remain in the classroom, finding that the, “theoretical risk of transmission of the AIDS virus by Ryan in connection with his attendance in regular kindergarten class is so remote that it cannot form the basis for any exclusionary action by the School District.” Chalk v. United Stated District Court Central Dist. of California, 840 F.2d 701 (1988). The court also stated in the opinion how, “[l]ittle in science can be proved with complete certainty.” Id.
Thus, the next time you encounter a vaccine mandate law, such as the most far reaching one in the nation that California has now put into place, I implore you to remember the Lochner standard, when you consider, is this “a fair, reasonable and appropriate exercise of the [police power], or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty.” Lochner v. New York, 198 U.S. 45, 56 (1905).