Ethan Carlson


This Comment discusses the standard of review for compulsory vaccine mandates for minor children under the Fourteenth Amendment. In Jacobson v. Massachusetts, the Court deferred to the wisdom of the legislature when the Board of Health in Cambridge, Massachusetts, created a compulsory vaccine mandate for every adult in Cambridge. Although the Court did not create the rational basis test in 1905, subsequent Supreme Court cases increasingly deferred to the state police and state parens patriae powers in justifying compulsory vaccine mandates for both children and adults. Both state and federal court opinions following Supreme Court precedent have upheld vaccine mandates and restrictions under the rational basis test. So long as the legislative means are rationally related to the legitimate objects of health and safety, courts often do not inquire further into legislative decision-making.

State legislatures, in turn, have created compulsory mandates which often criminalize the act of refusing a vaccine. In some cases, courts have even determined that parental failure to vaccinate one’s children constitutes parental neglect. Although state laws widely vary, some states have drawn no distinction between mandates for public-school children and mandates for homeschool children. Considering the dramatic politicization of vaccine mandates in recent years as well as the measures that both federal and state governments have taken to ensure COVID-19 vaccine compliance, the current state of the law leaves parents with little recourse against the imposition of compulsory vaccine mandates. The law now permits the state to enter the sanctity of the home and compel parents to vaccinate their children under threat of criminal penalty. There are few limits on state police power in the realm of compulsory vaccination.

This Comment proposes that parental vaccine refusal should be a fundamental right protected by strict scrutiny. Substantive due process analysis supports this proposal because the fundamental right comes from two preexisting liberty interests: (1) the bodily autonomy of the child and (2) the independent fundamental right of the parent in the care and custody of the child. Using history, tradition, and precedent from both liberty interests, the Court would have a sufficient legal basis to hold that parental vaccine refusal is a fundamental right. When there is a substantial burden on the proposed fundamental right, strict scrutiny would then be applied, shifting the burden to the state to justify its actions. Requiring the state to satisfy a higher standard would reinforce the delicate balance between individual rights and state interests by preventing overbroad grants of deference to state legislatures that may burden individual rights. As applied to COVID-19, the application of strict scrutiny would likely block compulsory vaccine mandates for minor children outside the public-school system.

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