ABSTRACT

In a hypothetical case, a citizen challenges the President’s order requiring polio vaccinations for all citizens, for violating his rights to liberty and privacy protected by the Due Process Clause of the Fifth Amendment. The fictional petitioner has little human contact but swims in a river that passes through his land, which puts everyone else who uses the river downstream at risk for polio. He asks the Court to overturn Jacobson v. Massachusetts (1905) which permitted the states to mandate vaccinations. His argument fails for four reasons. Jacobson v. Massachusetts (1905) is longstanding; polio is a major health risk and threat to the public; protecting public health and safety is within the state’s policing power; and mandatory vaccination is deeply rooted in the nation’s history and traditions, but a substantive due process right against it would also have to be so rooted. Moreover, remaining unvaccinated is morally wrong and unethical. The federal Constitution does not require the government to permit one citizen to put others at risk. For all these reasons, there is no federal constitutional liberty or privacy right to refuse mandatory vaccination.