Vaccine Mandates: Second Circuit Reaffirms their Constitutionality

By Wendy Parmet

Although the political debate over vaccination rages on, the legal debate is as settled as the science. Last month, in Phillips v. City of New York, the Second Circuit reaffirmed in record time what it and other courts have consistently held: states have the power to mandate that schoolchildren be vaccinated against vaccine-preventable diseases.

The plaintiffs in Phillips included parents of children who had received a religious exemption, but were barred from school during a chicken-pox outbreak, and parents of a child who had been denied a religious exemption. Together they brought just every claim possible against city and state defendants: free exercise, substantive due process, equal protection, and the Ninth Amendment. Last June, District Court Judge William F. Kuntz granted summary judgment for the defendants, relying heavily on an earlier decision of the Second Circuit, Caviezel v. Great Neck Public Schools. Plaintiffs appealed to the Court of Appeals.

The Second Circuit heard the appeal on January 5. Only two days later it issued a per curiam decision upholding the District Court’s judgment. In rejecting the plaintiffs’ substantive due process challenge, which claimed “a growing body of scientific evidence demonstrates that vaccines cause more harm to society than good,” the court noted that over a hundred years ago, the Supreme Court held in Jacobson v. Massachusetts that that determination should be left to the legislature. Turning to the free exercise claim brought by the plaintiff whose child did not receive a religious exemption, the court cited the “persuasive dictum” from Prince v. Massachusetts: “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or to the latter to ill health or death.” The court added that the state need not require any religious exemption whatsoever, and thus can clearly allow for a more limited religious exemption than the plaintiffs sought. Finally the court dismissed the plaintiff’s equal protection claim as without any support on the record, and Ninth Amendment claims on the settled principle that the amendment does not provide an independent source of rights.

In rejecting the plaintiffs’ claims, the Phillips decision did not break any new ground. Rather it reiterated well-established constitutional principles. Vaccine opponents and some politicians may claim that vaccine laws deny parents’ their “freedom.” Perhaps, but it is a freedom that is not constitutionally recognized.

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