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The Supreme Court, when first adjudicating compelled vaccination, recognized that the "police power" granted to states under the Constitution's 10th Amendment permits all jurisdictions to legislate to "protect the public health and the public safety."1 Thus, the Court said, Massachusetts was acting within its appropriate authority when requiring persons to submit to vaccination against smallpox and when imposing sanctions for noncompliance. Seventeen years later, the Court affirmed a Texas mandate that required documentation of the receipt of certain vaccinations before children could enter school.2
Today, all states and the District of Columbia have instituted immunization requirements for school entry and all jurisdictions provide a procedure for parents to opt out of the requirements. These mandates have proved to be the most effective tool ever devised for increasing access to recommended vaccines for our children. Indeed, the national coverage rate for most childhood vaccines is 95%.3
Another argument against compulsory HPV vaccination contends that because the infection is not casually communicable, the traditional justifications outlined in previous judicial decisions do not apply. However, the mode of transmission is a distinction without meaningful difference, and the result is the same. Twenty million persons are currently infected with HPV; 6 million more become infected each year. The threat to the public's health, at least with respect to vaccine-related strains, is preventable with the vaccine.
Legal precedent, although established before the introduction of the new vaccine against a virus that is transmitted through intimate contact, will nevertheless serve as the nexus for decisions about the future. If courts are ever called on to review the appropriateness of mandating vaccination against HPV, the traditional underlying principles set forth to justify vaccine mandates could easily outweigh concerns about the mode of transmission. Courts must rely on and respect the established precedent on which immunization mandates have been built.
Alexandra M. Stewart, J.D.
George Washington University Medical Center
Washington, DC 20006
stewarta{at}gwu.edu
Dr. Stewart reports working under a contract from Merck (with the Department of Health Policy at George Washington University Medical Center, which has conducted research on access to vaccines among the underserved) to study Medicaid coverage of the HPV vaccine. No other potential conflict of interest relevant to this letter was reported.
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