Informing national debate about the role of government in stemming the spread of measles, Elon Law Professor Helen Grant offers analysis of current vaccination laws and points to potential gaps in U.S. health law. Grant's commentary is the first in a weekly “Elon Law Now” series providing faculty analysis of current legal issues.
“Can the Government require U.S. citizens and residents to vaccinate their children? The answer is yes. All 50 states have some form of obligatory vaccination program requiring children attending school, preschool and childcare centers be vaccinated. Constitutional challenges to these programs, the most recent heard and determined by the Second U.S. Circuit Court of Appeals in January of this year, have been firmly rejected; a State’s enforcement of vaccination programs which are necessary for the public health or public safety are a valid exercise of a state’s police powers.
“All 50 states do permit an exemption for medical reasons, 48 for religious beliefs and 17 permit philosophical objections to immunization. The degree of scrutiny given to these waivers differs from state to state. Some jurisdictions incorporate a review process to determine whether the physician’s medical certification is warranted or the claimed religious convictions are sincerely held; other states take the waivers at face value.
“The Federal Government through its immigration laws also enforces vaccination. An alien immigrating to the United States must comply with vaccination requirements, once again based upon public health and safety concerns and subject to minimal exemptions. Where the gap may lie is in respect of visitors to the United States. While those seeking to enter the United States pursuant to a non-immigrant visa or through the visa waiver program are required to answer health questions that include whether they have a communicable disease of public health significance, they are usually not required to prove vaccination nor undergo a medical examination as a condition to entry. According to the Department of State, for the Fiscal Year 2013, immigrant visas were refused for lack of required vaccinations in 3,153 cases. In comparison, not one non-immigrant visa was refused upon this basis, though 17 were refused upon communicable disease grounds. This is a loop hole that the federal government should explore closing, given that other countries may not have the same immunization requirements as the United States.”
More information about Elon Law Professor Helen Grant is available here.