The police power to protect the public health and safety extends to involuntary treatment of persons
who pose a threat to the community. The most common examples of involuntary treatment are
state-mandated immunizations for childhood diseases. In the only immunization case ever decided
by the U.S. Supreme Court, the Court held that it was constitutionally permissible to force an
individual to be vaccinated for smallpox by arguing:
We are not prepared to hold that a minority, residing or remaining in any city or town
where smallpox is prevalent, and enjoying the general protection afforded by an organized
local government, may thus defy the will of its constituted authorities, acting in good faith
for all, under the legislative sanction of the state. If such be the privilege of a minority, then
a like privilege would belong to each individual of the community, and the spectacle would
be presented of the welfare and safety of an entire population being subordinated to the
notions of a single individual who chooses to remain a part of that population.[Jacobson v
Massachusetts, 197 US 11358, 363 (1905)]
A patient who refuses to accept treatment for a contagious disease may be ordered to accept the
treatment by a health officer or, depending on the jurisdiction, by a court. A common practice is to
incarcerate a recalcitrant patient until the patient consents to the treatment. This coerced consent
is not obtained as a sham of an informed consent, but as a way to obviate the need for physically
forcing the treatment on the patient. It also gives the patient an opportunity to contest the treatment
through a habeas corpus proceeding.
Most mandatory immunization laws contain exemptions for individuals who have a high probability
of being injured by the immunization. Many of these laws also exempt persons who have religious
objections to immunization. Although the U.S. Constitution allows mandatory immunization of
religious objectors, most states do not take advantage of this power. The effectiveness of
immunization laws depends on compliance by health care providers and parents. If health care
providers give medical exemptions to a large percentage of their patients, the level of immunity in
their school system might drop low enough to support a disease epidemic. If a child is improperly
exempted from immunization, the health care provider could be held liable should the child contract
the disease and suffer any permanent sequella.
The most difficult political problem in immunization law is the compensation of persons injured by
vaccines. (This same issue arises when a person is injured by mandatory treatment for a
communicable disease] Just as persons inducted into the armed forces have no right to sue the
government either for deprivation of liberty or for injuries suffered in the line of duty, so persons
injured by disease control measures have no constitutional right to compensation. In many cases,
however, the government has chosen to allow compensation through laws such as the National
Childhood Vaccine Injury Compensation Act.
