The legal argument against mandatory vaccination

January 8, 2015

A three-judge panel at the 2nd U.S. Circuit Court of Appeals heard oral arguments on Jan. 5 in Phillips v. City of New York, in which three families sued the city and the state over enforcement of New York’s law mandating vaccination for public school children. Just two days later, the appeals court affirmed a trial judge’s dismissal of the families’ constitutional challenge. In a 14-page per curiam opinion, 2nd Circuit Judges Gerard Lynch and Denny Chin and U.S. District Judge Edward Korman of Brooklyn, sitting by designation, said that New York’s mandatory vaccine law does not violate the families’ constitutional due process, equal protection or religious freedom rights.

It’s rare for a federal circuit court to dispose of a case that quickly. What’s more, the 2nd Circuit’s due process discussion relies on precedent dating all the way back to 1905, when the U.S. Supreme Court established in Jacobson v. Commonwealth of Massachusetts that states have the authority to require vaccination when legislatures deem it to be “necessary for the public health or the public safety.” More than 100 years of case law backs state vaccination mandates. The Phillips appeal, as far as the 2nd Circuit was concerned, was practically over before it began.

I wondered how the families’ lawyer, Patricia Finn of Piermont, New York, had attempted to respond to the Supreme Court’s Jacobson decision, an eloquent defense of the principle that individual rights are sometimes trumped by the greater good. (“In every well-ordered society charged with the duty of conserving the safety of its members,” Justice John Harlan wrote in the 1905 opinion, “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”)

So I checked out Finn’s brief to the 2nd Circuit – and, I have to say, I found an argument more subtle and sophisticated than I’d have predicted from the 2nd Circuit’s quick ruling. I’m personally a proponent of mandatory vaccination, for all of the public health rationales New York State lays out in its appellate brief in the Phillips case. I don’t believe Finn and her clients will ever manage to bring the federal courts around to the merits of their position, which is that mandatory vaccination is a public health fraud perpetrated by big pharmaceutical companies.

Nevertheless, I give Finn more credit for legal creativity than the 2nd Circuit did. She attempted to turn seemingly dispositive Supreme Court precedent into a justification for permitting her clients to present their anti-vaccine arguments.

I should first explain that Finn is the leading appellate lawyer for opponents of mandatory vaccinations for school children, by which I mean (unfortunately for her and her clients) that before the Phillips appeal, Finn lost the other two most recent federal circuit challenges to vaccination laws, the 4th Circuit’s 2011 decision in Workman v. Mingo and the 2nd Circuit’s ruling the following year in Caviezel v. Great Neck. In both previous cases, according to the appellate opinions, Finn contended that the Supreme Court decided Jacobson wrongly. She also argued that the 1905 opinion addressed just the narrow circumstance of one adult’s smallpox vaccination in the midst of an outbreak of the disease, not a panel of prophylactic vaccines for all school-aged children. The 2nd and 4th Circuits rejected those arguments, finding that Jacobson, which has been cited in dozens of decisions affirming states’ public health prerogatives, remains controlling Supreme Court precedent.

In her brief in the Phillips appeal, Finn parsed the Jacobson opinion in an attempt to turn the ruling to her advantage. The 1905 Supreme Court opinion, she said, concluded that states may exercise their police powers – but only when public health and safety are at stake. According to Finn’s brief, post-1905 Supreme Court precedent on the fundamental right to control your medical treatment dictates that courts apply heightened scrutiny to state vaccination programs, not the rational-basis scrutiny the Supreme Court used in Jacobson. She argued that the 2nd Circuit should require New York to prove the public health benefits of its vaccination program before it decides her clients’ constitutional rights.

In Wednesday’s opinion, the 2nd Circuit said Finn is still wrong. Under Jacobson, the court said, state legislatures – not individual plaintiffs – have the right to determine public health policy. Finn and her clients may believe “a growing body of scientific evidence demonstrates that vaccines cause more harm to society than good,” the 2nd Circuit said, but “plaintiffs’ substantive due process challenge to the mandatory vaccination regime is therefore no more compelling than Jacobson’s was more than a century ago.”

Finn said in an interview Wednesday that she plans to ask for en banc review from the 2nd Circuit and, if that is not successful, to file a certiorari petition at the Supreme Court. “They’re looking at only one side of Jacobson, the police power side,” she said. “They’re not looking at the other part, the procedural and due process rights.” (The Phillips case also raises First and Fourteenth Amendment arguments based on the particulars of New York’s public health statute and how officials applied the law to the three families in the suit.)

Finn has said publicly (and repeated to me) that she was investigated in 2012 by a state bar grievance committee because of her anti-vaccination advocacy. Like I said, I don’t believe in her cause. I’m sure New York and the other 49 states could easily prove that requiring kids to be vaccinated is a boon to public health and that vaccine opponents like Finn’s clients are responsible for the revival of dangerous diseases.

But I still like a plucky argument.

(Reporting by Alison Frankel) (Reporting By Alison Frankel)

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One comment

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It has been deemed, by good society for the safety of society, that murder be outlawed. Along with murder, there are many anti-social acts that are also outlawed. The anarchist desires of Finn, clients et al, are not acceptable to good society though anarchy may be in vogue, anarchy is highly detrimental to good society.

Posted by SixthRomeo | Report as abusive