Gottlieb’s threat of federal vaccine mandates: questionable legality, poor policy

As six outbreaks of measles raged in different parts of the country, Food and Drug Administration Commissioner Scott Gottlieb recently told reporters that the failure of some states to narrow vaccine exemptions was “going to force the hand of the federal health agencies.” Without offering many details, Gottlieb added that the federal government “could mandate certain rules about what is and isn’t permissible when it comes to allowing people to have exemptions.”

As someone who has researched and written about public health law, including vaccine mandates, for more than 30 years, I appreciate the sentiments behind Gottlieb’s comments. Vaccines have saved innumerable lives, and have led to the eradication or near eradication of once common scourges, such as smallpox and polio. Vaccine mandates have helped ensure that success by keeping vaccination rates high.

Religious and personal belief exemptions to vaccine laws have done the opposite. They are associated with decreased vaccination rates and increases in vaccine-preventable diseases.

With the number of measles cases rising, especially among unvaccinated children, it makes sense for states to narrow their exemptions, as a bill before the Washington state legislature would do, and as California did in 2015 following a measles outbreak linked to Disneyland. But that doesn’t mean federal health agencies should act as Gottlieb suggests. Doing so would likely violate the law. It could also worsen the problem of vaccination resistance.

First, the law. There is no question that states can require all children (except perhaps those with medical contraindications) to be vaccinated before entering school or day care. In 1905, in Jacobson v. Massachusetts, the U.S. Supreme Court upheld a Massachusetts law that compelled all individuals to be vaccinated against smallpox. In Zucht v. King, the court in 1922 relied on Jacobson to affirm a Texas law mandating vaccination for schoolchildren. Neither the Jacobson nor Zucht cases dealt with claims of religious liberty, since the court had not yet applied the First Amendment right of free exercise against the states, but in a 1944 in a case concerning child labor, the court proclaimed that religious freedom “does not include liberty to expose the community or the child to communicable disease.”

Courts today continue to uphold vaccine mandates, and rule that neither the religious exemptions that 47 states have nor the philosophical exemptions that exist in 17 states are constitutionally required. Paradoxically, state mandates have run afoul of the Constitution only when they contain religious, but not secular, exemptions, or when the religious exemptions favor one faith over another.

That the states are on firm constitutional ground in repealing personal belief or religious exemptions doesn’t mean the federal government can abolish such exemptions. In its 2012 ruling on the Affordable Care Act’s individual mandate, the U.S. Supreme Court said that the federal government’s authority over interstate commerce does not permit it to compel individual action. If Congress can’t require individuals to have health insurance, or eat broccoli, it can’t mandate vaccination either.

Perhaps Gottlieb was suggesting that the federal government could require the states to abolish religious or personal belief exemptions. That would also face significant constitutional problems. Under the 10th Amendment’s anti-commandeering doctrine, the federal government cannot force states to pass laws to its pleasing.

Congress could use its power of the purse to buy state compliance, perhaps by requiring states to get rid of philosophical and religious exemptions in order to receive federal public health funds. But any such conditional spending laws must give states a clear choice and can’t be coercive.

In addition, federal health agencies can’t act without congressional authority. Under current law, the FDA licenses vaccines. But it cannot regulate the practice of medicine, and it has no authority to mandate that individuals be vaccinated. Nor does the FDA have statutory authority to require states to enact specific vaccine laws. The CDC’s Advisory Committee on Immunization Practices (ACIP) is charged with making recommendations about vaccinations, but these are meant to advise, not dictate, state laws.

Nor should Congress give such authority to any federal health agency. Although mandates can save lives, they can also stoke backlashes. Conspiracy theorists already allege a nefarious relationship between vaccine makers and the federal government. These conspiracies have gained traction in part due to the fact that under the National Childhood Vaccine Injury Act, the federal government acts as the defendant in vaccine litigation. Federal mandates could enhance the perception of a conflict of interest, leading more parents to distrust federal officials and question vaccine safety.

The litigation that would almost certainly follow a federal mandate would add to the problem, providing anti-vaxxers with a new forum in which to question vaccine safety as well as the integrity of the federal regulatory process.

As we have seen in California and Washington, infectious disease outbreaks can lead parents and health professionals to work with their state legislatures to narrow or abolish vaccine exemptions. This democratic process, which can occur more organically in the states, helps debunk anti-vaccination misinformation and educates the public about the value and safety of vaccines, as well as the utility of strong state mandates. This process can also provide mandates with the political support and democratic legitimacy they need to succeed.

With measles cases on the rise, it’s no surprise that health officials want to shortcut the often slow and frequently unpredictable democratic process and instead take swift action to reduce exemptions — and increase vaccination rates. Unfortunately, there is no vaccine against vaccine resistance, and constitutionally dubious actions by federal officials can’t do the trick. But by working to improve public education around vaccines, enhancing transparency, educating and paying health professionals to talk to parents about vaccines, and ensuring vaccine safety, federal officials can help bolster trust in vaccines. Those efforts, more than anything, may lead to fewer exemptions.

Wendy E. Parmet, J.D., is professor of law and director of the Center for Health Policy and Law at Northeastern University School of Law and professor of public policy and urban affairs at Northeastern’s School of Public Policy and Urban Affairs.