Massachusetts will mandate that all students receive the flu vaccine by the end of 2020, to attend classes next year. This is a valid and constitutional use by the Bay State Police Force.
According to an announcement from the Massachusetts Department of Public Health on Wednesday, “all children 6 months of age or older attending Massachusetts Childcare, Preschool, Nursery, K-12, and colleges and universities will be required to to be affected by immunizations by 31 December 2020 “unless a medical or religious exemption is granted.”
The only exceptions are for homeschooled students, certain higher education students “who attend online classes exclusively and never attend campus in person,” and those with valid medical or religious objections.
“Every year, thousands of people of all ages are affected by the flu, leading to many hospitalizations and deaths,” said the Department of Public Health’s Bureau of Infectious Disease and Laboratory Sciences Medical Director Dr. Larry Madoff sei. “It is now more important than ever to get a flu vaccine because flu symptoms are very similar to those of COVID-19 and preventing the flu will save lives and save resources.”
The announcement sparked a predictable wave of condemnation on social media of people criticizing the order with colorful language. Some characterized the public health initiative as an attempt to exercise control and / or questioned its legality. Although such answers are more or less perennial and are largely outside the realm of this explorer, in legal terms, the order is on certain footing.
In 1905, the U.S. Supreme Court upheld a mandatory law on smallpox vaccination in the landmark case stylized as Jacobson v. Massachusetts. Under the law in question, those who pleaded guilty were subject to fines and potential imprisonment. The petitioner’s appeal against the law under the 14th Amendment and the nation’s high court issued a 7-2 majority ruling in favor of the state and it is mandated for public health.
Right John Marshall Harlan notes that “the freedom guaranteed by the United States Constitution to any person in its jurisdiction does not imply an absolute right in any person, at any time and under any circumstances, to be completely free from restriction.”
More of that opinion, long:
The authority of the state to adopt this statute must be referred to what is simply called the police force, – a power which the state did not hand over when it became a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, it has nevertheless recognized the authority of a state to impose quarantine laws and ‘health laws of any description;’ indeed, all laws relating to matters wholly within their territory and which do not by their necessary action affect the people of other states. According to established principles, the police power of a state must be maintained in order to include at least such reasonable regulations as are directly enacted by legislative implementation such as the protection of public health and public safety.
Here, the analogous situation would be that any student who refuses to be vaccinated – either out of their own desire or because their parents forbid them to get such a shot in the arm – would simply not be allowed “childcare, preschool, nursery school” , K-12 ”as a college student in Massachusetts for the school year 2021-2022.
Notably, the Supreme Court also said that governments should be reasonable in enforcing public health laws and not act “in such a arbitrary and oppressive manner as to justify court interference to prevent wrongdoing and oppression.”
The existence of the above exemptions for students who only use distance education, church members against injections and for students with real medical problems are likely to be sufficient to meet the reasonableness requirements.
And although well over 100 years old, the matter is still a good law.
In April of this year, the Fifth Circuit Court of Appeals cited the ruling to hold a controversial abortion ban in Texas, which was apparently introduced to combat the novel Coronavirus (COVID-19) pandemic.
“Under the pressure of great dangers, constitutional rights may be reasonably restricted as the safety of the general public may require,” the court found. “With this rule, the state can, for example, restrict the right to mount peacefully, worship in public, travel and even leave the house. The right to abortion is no exception. ”
In May, it cited the Commonwealth of Pennsylvania Jacobson in a brief before the Supreme Court to maintain its own COVID-19-related lockdown against opposition from the owner of a golf course who complained that public health orders were bad for business. The owner of the golf course eventually lost.
[image via EVA HAMBACH/AFP via Getty Images]Editor’s Note: This story has been modified after publication for clarity.
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