Richard H. Hughes, IV, and Kyla Perrotta, attorneys in the Health Care & Life Sciences practice, co-authored an article in Health Affairs, titled “Vaccine Litigation at the Brink: A Surge of Cases Threatens Public Health.”
Following is an excerpt:
For more than a century, the American legal system has treated vaccination as a cornerstone of public health and as an area where state authority, individual liberty and scientific judgment must be carefully balanced. Historically, the courts have played a stabilizing role. When vaccines were challenged, judges consistently recognized that the states possess a responsibility to protect communities from contagious disease, and that this responsibility sometimes requires reasonable limits on individual choice.
As the nation confronts a new wave of vaccine-related lawsuits, that balance is becoming strained in unprecedented ways. The past few years have produced a volume, intensity, and ideological diversity of litigation unlike anything seen since the late twentieth century. The result is a legal environment that is not merely unsettled, but genuinely unstable.
A Century of Legal Foundation
The United States’ legal framework for vaccination begins with the familiar Jacobson v. Massachusetts in 1905. The case arose from a smallpox outbreak in Cambridge, Massachusetts, where local officials required residents to be vaccinated or pay a fine. Henning Jacobson, a pastor, argued that the mandate violated his civil liberties under the Fourteenth Amendment.
The Supreme Court disagreed in a way that has shaped public health law for generations. The Court recognized that individual freedom is fundamental, yet not absolute. In the context of contagious disease, the state has both the authority and the duty to act for the collective welfare. Because the state’s policy bore a real and substantial relationship to preventing disease, the law was upheld. At the same time, the Court warned that public health measures cannot be unduly oppressive, arbitrary, or unrelated to legitimate scientific reasoning. This balance became the bedrock of vaccine jurisprudence.
The Court reinforced this reasoning in Zucht v. King in 1922, a case that involved school vaccination requirements in San Antonio, Texas. The Court held that communities may exclude unvaccinated children from school to prevent outbreaks.
Importantly, Zucht treated vaccination as a routine expression of state police power. The case affirmed that local governments have broad authority to set vaccination policy for the protection of the broader public. Notably, Zucht was decided in a non-outbreak context, symbolizing the importance of states’ ability to compel vaccination for purposes of suppressing endemic diseases.
Mid-century cases such as Prince v. Massachusetts strengthened the connection between public health and state authority further. Although Prince was not about vaccination, it established a principle that courts repeatedly cited in subsequent vaccine cases: Parental liberty does not extend to exposing a child or community to communicable disease. …
