A Federal Compulsory Vaccination Plan

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Richard A. DeVito, Jr




During oral arguments for the Patient Protection and Affordable Care Act, Justice Breyer on several occasions questioned whether the federal government could compel individuals to be vaccinated in the event of a national emergency where a highly contagious disease was sweeping through the country. This article does not seek to predict or analyze the legal implications of such an action; rather it argues that a national approach to such an emergency should be implemented. Recent concerns over the potential for H5N1, or “bird flu,” to become airborne illustrate the type of epidemic that Justice Breyer may have been envisioning. By broaching this subject now, instead of in the midst of an outbreak, adequate time is left to research appropriate solutions, allow for debate, and provide public education.While vaccination laws are typically promulgated on the state level under state police power, these compulsory laws are accompanied by exemptions that can undermine their effectiveness. For example, religious and philosophical exemptions have led to outbreaks of pertussis, or whooping cough, in multiple states. Considering the various state exemptions along with laws granting governors and health officials broad power to alter vaccination laws during emergencies, it is nearly impossible to predict how individual states will respond. Legally and ethically speaking, the rights of individuals are not absolute and cannot be utilized to subject others to harm.A federal compulsory vaccination law allows for balancing individual rights and public health, with the interests of the nation as a whole in mind.

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