Constitionality of mandating flu shots
June 7, 2015 Assembly Health Committee Dear Chairman Bonita, Dear Members of the Health Committee, RE: SB 277: Response to “Statements of Lawyers Opposed to California SB 277” I am a Professor of Law at UC Hastings College of the Law.
I am writing this letter in response to the “Statement of Lawyers Opposed to California SB 277”.
Thus, the California Senate, led by Senator and Dr.
Richard Pan, voted for SB 277, which sailed through the California Senate and Assembly, subsequently becoming law.
The reason states have such dramatic leeway to require vaccination is that immunizing children is at the intersection of those two interests: because the risks of vaccinating are dramatically smaller than the risks of not vaccinating, and because vaccinating affects not just the child but others, the courts defer to the legislature’s balancing of these interests. 158, 166-67 (1944), explaining that a parent: cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds.
This was most clearly stated in a classic paragraph in the Supreme Court’s decision in Prince v. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. States may compel vaccination – generally, or as a precondition to attending school. A much more detailed discussion of this can be found here.
Further, the right to education also covers those who cannot be vaccinated, who can benefit from a medical exemption.
California’s courts have interpreted Article IX to the constitution as acknowledging a fundamental right to education. A safe and healthy environment is a compelling interest and a precondition to education. Williams settled – it never set a precedent, but there is no case in which courts struck down a health or safety regulation in the name of a right to education.The parents who choose not to vaccinate have a choice; the parents of these children do not.Between those two groups, it’s those with no choice that have the stronger claim to a right to access, and SB277 – leaving intact the medical exemption – protects their right to access.Aamer Imdad, et al., Religious Exemptions for Immunization and Risk of Pertussis in New York State, 2000–2011, PEDIATRICS (2013). These outbreaks, while still limited, are a wake-up call, warning us that immunization rates are not high enough.The responsible thing for California to do in response to this warning call is to legislate to increase immunization rates. Since the legislature has dramatic leeway it could choose among three options: Allowing the minority that opposes vaccines to continue to deny their children protection from disease, increasing the risk of outbreaks in the community.