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
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. …