Bioterrorism Defense: Are State Mandated Compulsory Vaccination Programs an Infringement upon a Citizen's Constitutional Rights?

Kohrs, Brendon, Journal of Law and Health

 
   I. INTRODUCTION 
  II. DEFINING BIOTERRORISM 
      A. Anthrax 
      B. Smallpox 
 III. DEFENSES 
      A. Vaccinations 
      B. Who Mandates Vaccinations? 
      C. Public Policy 
  IV. FOURTEENTH AMENDMENT 
      A. Liberty Guarantees 
      B. Right of Privacy 
      C. State Police Power 
         1. Limitations on Liberty by the State 
            Police Power 
      D. Judicial Scrutiny 
   V.  EXEMPTIONS TO COMPULSORY 
      VACCINATION 
      A. Religious Exemption 
      B. Philosophical Exemption 
      C. Medical Exemption 
  VI. Is THERE AN EXCEPTION TO 
      THE EXEMPTION? 
      A. Parens Patria 
 VII. DISCUSSION AND ANALYSIS 
VIII. CONCLUSION 

I. INTRODUCTION

More than two years have passed since the attack on the World Trade Center in New York City on September 11, 2001. This event marked the first time the United States has been under foreign attack on its own soil since the attack on Pearl Harbor on December 7, 1941. (1) A new faceless enemy has surfaced: one who thrives on terror. The war on terrorism may be fought on American soil with biological agents. Shortly after the World Trade Center attack, the biological agent anthrax was discovered in the mail system after several U.S. Postal Employees were diagnosed with, and later died from, the infections. (2) This bioterrorism threat is not a new problem. It is an easy way for a terrorist group to inflict fear and harm. (3) The agents of anthrax and smallpox are the best choice for such a group to deploy since they can and will create fear and deaths among the general populace. (4) Smallpox is especially dangerous since it can be passed from person to person and spreads quickly. (5) Even though smallpox was eradicated from the world in 1980, (6) and the last vaccinations given in the U.S. were in 1972, (7) the threat is still of great concern. The intelligence community knows that Iraq (8) and other terrorist nations have been researching and possibly manufacturing biological weapons. Questions needing answers include: 1) When and where will biological weapons be used; and, 2) Is the American public prepared? If biological weapons are used, the only certain preparation lies in vaccination.

There are problems with creating legislation forcing a citizen to conform to a compulsory vaccination program. This type of legislation is a violation of a citizen's right of liberty, as guaranteed by the Fourteenth Amendment, to be free from unwanted physical restraint and refuse life saving medical treatment. (9,10) The states have the ability to create compulsory vaccination programs under the auspices of police power, (11) Police power allows the states to create legislation having the purpose of affecting the public security, welfare, health, justice, and morality. (12)

The agents of anthrax and smallpox threaten the health and welfare of the state citizenry and therefore the state can enact legislation appropriate to offset the possible harm. In order for the enacted legislation to withstand a constitutional challenge, the possible harm has to be a compelling governmental interest of public safety and welfare and narrowly tailored to that goal. (13) The purpose of this article is to demonstrate that the United States Department of Health and Human Services has the ability to recommend a compulsory vaccination program for citizens, and this program would not be in violation of a person's constitutional right of liberty as guaranteed by the Fourteenth Amendment.

II. DEFINING BIOTERRORISM

The United States Government has defined terrorism in two ways. The Department of Defense defines terrorism as "the calculated use of violence or the threat of violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological." (14) The State Department defines terrorism as the "premeditated, politically motivated violence perpetrated against noncombatant targets by sub national groups or clandestine agents, usually intended to influence an audience." (15)

The goals of the terrorist organization "are always political, as extremists driven by religious or ideological beliefs usually seek political power to compel society to conform to their views." (16) Terrorism typically has two elements. First, the relation between the act of generating fear and panic through the uncertainty of attack, the unknown time, place, and weapon that will be utilized. (17) Second, the attack itself; which is designed to cause immense pain and death on the general populace, (18) The terrorists carefully choose their targets for the effect the group is trying to achieve on the populace, which the intent is to produce fear in someone other than the victim. (19)

Historically terrorists planned their attacks on monarchs or singular objects and strived to avoid affecting "innocent" targets. (20) Modern terrorists have abandoned the past beliefs and have dehumanized all persons by believing in an "us versus them" mentality that anyone outside of their group has evil motives. (21) Traditional methods for achieving their goals have often been through assassinations, arson, hostage taking, bombings, sabotage, etc.... (22) The modern trend in terrorism includes weapons of mass destruction, otherwise known as nuclear, biological, and chemical weapons. (23) The use of these techniques is determined by the goal the group is intending to achieve, whether it is to "gain attention, collect resources, eliminate a threat, or demonstrate a capability." (24) The United States has been the target of terrorist acts, with the bombing of the World Trade Center, and the actions of domestic terrorists in the destruction of the Federal Building in Oklahoma. (25) These actions were intentionally designed to inflict terror on the population in an attempt to send a message that no one is safe at anytime. (26)

Bioterrorism is not a new concept. The history of biological warfare reaches back to the use of smallpox during the French and Indian Wars (1754-1767). (27) The delivery was perpetuated by the distribution of blankets used by smallpox patients to the Native American Indians. (28) This example shows the ease with which a biological weapon can be dispersed. Bioterrorism is the introduction of a biological agent within an area to inflict the same fear, harm, and death. (29) Biological agents range from a number of deadly viruses, bacteria, or their toxins. (30)

The subject of bioterrorism has not garnered public scrutiny until recently. Before the attacks in Iraq, Russia, and Japan, there were few articles on the subject. (31) There were four points of view on the use of bioterrorism according to Professor Henderson of John Hopkins University. The first view followed the principle believing that since the weapons had been seldom deployed, they would not be utilized. (32) Second, the use of biological weapons is morally repugnant and no one would even think of their utilization. (33) Third, development and dispersion is so difficult to develop it would only be available to industrialized nations with sophisticated scientific laboratories. (34)

Finally, the destructive capabilities would be likened to "nuclear winter" and their use would be unthinkable. (35) These viewpoints have now been debunked. (36) Bioterrorism tactics are part of our current reality and future attacks are more likely than ever. (37) Terrorists do not care about morality when they are planning attacks. Some have been funded by some of the most affluent extremists and countries. (38) The recipes for making and dispersing these weapons are easily available on the internet. (39) Stating that the weapons will not be used is pure fantasy. Biological weapons are easy to make and are becoming more and more widely available.

A disconcerting problem with the use of biological agents is their potential for quiet deployment. (40) Essentially, there will be no bombs exploding or immediate illness. Most of these agents have incubation periods ranging from a few days to months and can be difficult to diagnose. Additionally, local hospitals and doctors lack the training and experience to identify these agents. (41) The most likely agents to be selected for use by a bioterrorist are anthrax and smallpox. Anthrax is naturally occurring and easily weoponized, while smallpox can spread quickly from person to person and has a high death rate. (42) In order to further understand why these agents are the most likely to be utilized, the following must be discussed: the dispersion capabilities, epidemiology, microbiology, and the effects on the individuals and available cures.

A. Anthrax

Anthrax (Bacillus anthracis) is a naturally occurring disease found globally. (43) Anthrax spores germinate in environments rich in amino acids, nucleosides, and glucose. These nutrients are readily found in the blood and tissues of an animal or human host. (44) Spores will only form after all of the nutrients have been taxed and the cells are exposed to air. (45) The following three forms of anthrax infection occur in humans: cutaneous, inhalation, and gastrointestinal. (46)

Cutaneous anthrax is the most common form and is caused by exposure to anthrax-infected animals. (47) Prior to the anthrax cases in 2001, the United States only had 224 cases reported between 1944 and 1994, mostly in rural agricultural areas. (48) The infections in 2001 are vastly different, however, as the disease was not transferred by animal exposure but as a powder sent through the mail. (49) The least common anthrax infection is gastrointestinal anthrax, which is caused by the ingestion of infected meat. (50) The most alarming of the three forms is inhalation anthrax, which has not been reported in the United States since 1978. (51) Inhalation is the deadliest of the three forms and is most likely to be developed as a biological weapon. (52) Inhalation anthrax begins through the ingestion of the aerosolized particles, which are absorbed by the lymphatic cell membranes. (53) The infection does not occur instantly, but may take up to several months to germinate. (54) Once germination has occurred, the disease progresses rapidly with the bacteria releasing toxins that cause hemorrhage, edema, and necrosis. (55) The amount of spores required to cause the infection is anywhere from 2,500 to 55,000. (56)

The inhalation infections discovered in the United States had two stages. In the first stage, patients developed non-specific symptoms that included fever, dyspnea, cough, headache, vomiting, chills, weakness, abdominal pain, and chest pain. (57) The second stage has a rapid onset of fever, dyspnea, diaphoresis, shock, massive lymphadenopathy and expansion of the mediastinum. (58) In addition, signs of hemorrhagic meningitis with concomitant meningismus, delirium, and obtundation were also present. (59) Finally, cyanosis and hypotension begin and death occurs within hours. (60) On average, the length of time between the onset of symptoms and death is a mere three days. (61)

The only known remedies for an anthrax infection are antibiotics and vaccination. The vaccine itself is produced by Bioport Corporation of Lansing, Michigan. (62) The vaccination process is delivered in a six-dose series and has been mandated for all U.S. military members. (63) There have been no serious adverse side affects related to the vaccine. (64) The U.S. version of the vaccine is an inactivated cell-free formula, whereas the rest of the world uses a live attenuated vaccine. (65) It should be noted the Western world considers live attenuated vaccines not suitable for human use. (66) However, the vaccine is in limited supply, therefore distribution to the general population is not recommended with the exception of key personnel. (67) On the other hand, there are wide varieties of antibiotics available for use upon diagnosis. The antibiotic treatment must begin within a short time after diagnosis. Waiting even a few hours lessens the chance of survival. (68)

The interest in deploying anthrax as a weapon is simple. Anthrax survives as a spore with actual physical characteristics, which can be delivered through simple means, such as sending it through the mail system. The main problem is that the spores must be aerosolized or airborne in order to be inhaled. (69) The biggest challenge is detection of the source. (70) Since symptoms do not appear immediately, the exposure could have originated days or even months prior to the first infection. (71) Anthrax has one benefit, on the receiving end, over other biological weapons: It is not patient-to-patient transmittable. (72) The infection is based on a contagion with physical characteristics, not a virus. Direct contact with the source is necessary.

Anthrax is a viable and dangerous biological weapon. One hundred million doses are derived from one gram of anthrax material. (73) This small amount of material is easy to produce and stable enough as a dry powder which can be stored for an infinite period. (74) The use of anthrax on a civilian population has been compared to the destructive power of a hydrogen bomb. (75) Even though the onset of disease may not be as instantaneous as …

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Publication information: Article title: Bioterrorism Defense: Are State Mandated Compulsory Vaccination Programs an Infringement upon a Citizen's Constitutional Rights?. Contributors: Kohrs, Brendon - Author. Journal title: Journal of Law and Health. Volume: 17. Issue: 2 Publication date: Summer 2002. Page number: 241+. © 1997 Cleveland Marshall College of Law. COPYRIGHT 2002 Gale Group.

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