Order Code RS21414
Updated January 18, 2005
CRS Report for Congress
Received through the CRS Web
Mandatory Vaccinations: Precedent and
Current Laws
Angie A. Welborn
Legislative Attorney
American Law Division
Summary
This report discusses the legal precedent for mandatory vaccination laws and
provides a brief overview of state laws that require certain individuals or populations to
be vaccinated against various communicable diseases. The role of both the federal and
state governments with respect to public health emergency powers, including requiring
the use of a vaccine, is discussed. This report will be updated as warranted.
History and Precedent
Historically, the preservation of the public health has been the responsibility of state
and local governments, and the authority to enact laws relevant to the protection of the
public health derives from the state’s general police powers.1 With respect to the
preservation of the public health in cases of communicable disease outbreaks, these
powers may include the institution of quarantine or the enactment of mandatory
vaccination laws.2 Mandatory vaccination laws were first enacted in the early nineteenth
century, with Massachusetts enacting the first such law in 1809.3
Jacobson v. Massachusetts is viewed as the seminal case regarding a state’s or
municipality’s authority to institute a mandatory vaccination program as an exercise of
its police powers.4 In Jacobson, the Supreme Court upheld a Massachusetts law that gave
municipal boards of health the authority to require the vaccination of persons over the age
of 21 against smallpox, and determined that the vaccination program instituted in the city
of Cambridge had “a real and substantial relation to the protection of the public health and
1 See The People v. Robertson, 134 N.E. 815, 817 (1922).
2 For more information on state and federal quarantine authority, see CRS Report RL31333,
Federal and State Responses to Biological Attacks: Isolation and Quarantine Authority.
3 Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint, p. 181 and n. 27.
4 197 U.S. 11 (1905).
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safety.”5 In upholding the law, the Court noted that “the police power of a State must be
held to embrace, at least, such reasonable regulations established directly by legislative
enactment as will protect the public health and the public safety.”6 The Court added that
such laws were within the full discretion of the State, and that Federal powers with respect
to such laws extended only to ensure that the state laws did not “contravene the
Constitution of the United States or infringe any right granted or secured by that
instrument.”7

The Court addressed the constitutional concerns raised by the petitioner in Jacobson,
but remained unconvinced that his rights were “contravened” by the mandatory
vaccination program. The petitioner argued that “his liberty is invaded when the State
subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination;
that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and,
therefore, hostile to the inherent right of every freeman to care for his own body and
health in such way as to him seems best; and that the execution of such a law against one
who objects to vaccination, no matter for what reason, is nothing short of an assault upon
his person.”8 The Court rejected the petitioner’s constitutional challenge and noted that
“the liberty secured by the Constitution of the United States to every person within its
jurisdiction does not import an absolute right in each person, to be, at all times and in all
circumstances wholly free from restraint.”9
State Mandatory Vaccination Laws
School Vaccination Requirements. State laws mandating vaccinations for
children are very common. Every state has a law requiring children to be vaccinated
before they enroll in a public or private school. Early statutes required vaccination against
smallpox and were amended as new vaccines were introduced.10 Many modern school
vaccination laws are the result of measles outbreaks in the 1960's and 1970's.11 Generally,
states use the Centers for Disease Control and Prevention’s schedule of immunizations
as a guide, and require children to be vaccinated against a number of diseases on the
schedule, including diphtheria, measles, rubella, and polio.12
5 Id at 31. The Massachusetts statute in questions reads as follows: “Boards of health, if in their
opinion it is necessary for public health or safety, shall require and enforce the vaccination and
revaccination of all the inhabitants of their towns, and shall provide them with the means of free
vaccination. Whoever refuses or neglects to comply with such requirement shall forfeit five
dollars.” ALM GL ch. 111, § 181 (2004).
6 Id at 25.
7 Id.
8 Id at 26.
9 Id.
10 James G. Hodge, Jr. and Lawrence O. Gostin, School Vaccination Requirements: Historical,
Social, and Legal Perspectives
, 90 Ky. L. J. 831, 867 (2001/2002).
11 Id at 868.
12 Id. See id at 869 for a complete list state laws regarding school vaccination requirements.

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Despite the wide-spread imposition of school vaccination requirements, many states
provide exemptions for medical, religious, and, to a lesser extent, philosophical reasons.
These provisions vary by state, with medical exemptions for children who may suffer
adverse effects from the vaccine being the most common. For example, in Colorado and
most other states, an exemption from the vaccination requirements may be obtained by
submitting to the school a certification from a licensed physician that “the physical
condition of the student is such that one or more specified immunizations would endanger
his or her life or health or is medically contradicted due to other medical conditions.”13
Almost all states also grant religious exemptions for persons who oppose immunizations
for religious reasons.14 The statutes allowing religious exemptions vary, with some
requiring only a statement of dissent from the student, parent, or guardian, and others
requiring a more specific statement regarding the child’s membership in a religious
denomination that opposes immunizations.15 Exemptions based on philosophical or moral
convictions in opposition to immunization are less common, but are provided by more
than a dozen states, including Arizona, California, Idaho, Louisiana, Maine, Michigan,
Minnesota, Nebraska, North Dakota, Ohio, Oklahoma, Vermont, Washington, and
Wisconsin.16 States may specify that such religious or philosophical beliefs be “sincere”
or “conscientiously held.”17
Vaccination Orders During a Public Health Emergency. Many states also
have laws providing for mandatory vaccinations during a public health emergency or
outbreak of a communicable disease. Generally, the power to order such actions rests
with the governor of the state, the state board of health, or the state health officer. For
example, in Hawaii, the Governor has the power to supplement the state’s existing
compulsory vaccination programs and institute additional programs in the event of a civil
defense emergency period.18 Arizona also authorizes the Governor, during a state of
emergency or state of war emergency in which there is an occurrence or the imminent
threat of smallpox or other highly contagious and highly fatal disease, “to issue orders that
mandate treatment or vaccination of persons who are diagnosed with illness resulting
from exposure or who are reasonably believed to have been exposed or who may
reasonably be expected to be exposed.”19 In Florida, upon declaration of a public health
emergency, the state health officer may order an individual to be vaccinated “for
13 Colo. Rev. Stat. § 25-4-903(2)(a) (2004).
14 Only one state - West Virginia - appears to not provide for an exemption based on religious
beliefs. W. Va. Code § 16-3-4 (2004).
15 See e.g., La. Rev. Stat. Ann. § 17:170(E) (2004); Kan. Stat. Ann. § 72-5209(b)(2) (2003).
16 See supra note 10 at fn. 234.
17 See e.g., Massachusetts, ALM GL ch. 76, § 15 (2004); Minn. Stat. Ann. § 121A.15 (2003).
18 HRS § 128-8 (2003). State law authorizes the department of health to adopt rules “requiring
and governing immunization against [communicable diseases], if a suitable immunizing agent
is available for the disease and a need for immunization against it exists within the State.” HRS
§ 325-32 (2003).
19 A.R.S. § 36-787 (2004).

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communicable diseases that have significant morbidity or mortality and present a severe
danger to public health.”20
Other states have provisions for mandatory vaccinations, but provide exemptions
similar to those for childhood vaccinations discussed above. For example, in
Connecticut, a person may refuse a vaccination if a physician determines that “it would
not be prudent on account of sickness.”21 In Virginia, vaccination requirements may also
be waived if the vaccination would be detrimental to a person’s health, as certified by a
physician.22 Wisconsin allows a person to refuse a vaccination for medical reasons and
also for “reasons of religion or conscience.”23 However, if a person refuses to be
vaccinated, he or she may be quarantined during the public health emergency giving rise
to the vaccination order.24
Model State Emergency Health Powers Act. In addition to the current laws,
many states are considering or have considered the provisions set forth in the Model State
Emergency Health Powers Act. The Model State Emergency Health Powers Act was
drafted by The Center for Law and the Public’s Health at Georgetown and Johns Hopkins
Universities.25 The Model Act seeks to “grant public health powers to state and local
public health authorities to ensure strong, effective, and timely planning, prevention, and
response mechanisms to public health emergencies (including bioterrorism) while also
respecting individual rights.”26 It is important to note that this is intended to be a model
for states to use in evaluating their emergency response plans, and passage of the Model
Act in its entirety is not required. In fact, many states will likely use parts of the Model
Act, but tailor their statutes and regulations to respond to unique or novel situations that
may arise in their jurisdiction.
The Model State Emergency Health Powers Act addresses a number of issues likely
to arise during a public health emergency and offers guidelines for states with respect to
what powers may be necessary during such an emergency. With respect to vaccinations,
the Act includes provisions similar to the current laws discussed above. Under the Model
Act, during a public health emergency the public health authority would be authorized to
“vaccinate persons as protection against infectious disease and to prevent the spread of
contagious or possibly contagious disease.”27 The Act requires that the vaccine be
administered by a qualified person authorized by the public health authority, and that the
vaccine “not be such as is reasonably likely to lead to serious harm to the affected
20 Fla. Stat. § 381.00315 (2004).
21 Conn. Gen. Stat. § 19a-222 (2003).
22 Va. Code Ann. § 32.1-48 (2004).
23 Wis. Stat. § 252.041 (2004).
24 Id.
2 5 A c o p y o f t h e M o d e l A c t c a n b e f o u n d a t
[http://www.publichealthlaw.net/Resources/Modellaws.htm].
26 Id.
27 Model State Emergency Health Powers Act, Article VI, Sec. 603.

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individual.”28 The Act recognizes that individuals may be unable or unwilling to undergo
vaccination “for reasons of health, religion, or conscience,” and provides that such
individuals may be subject to quarantine to prevent the spread of a contagious or possibly
contagious disease.29
Role of the Federal Government
Under the Public Health Service Act, the Secretary of Health and Human Services
has the authority to make and enforce regulations necessary “to prevent the introduction,
transmission, or spread of communicable diseases from foreign countries into the States
or possessions, or from one State or possession into any other State or possession.”30
While this language appears to confer broad authority to promulgate regulations necessary
to prevent the spread of disease, the only regulations specifically authorized by the Act
relate to the apprehension, detention, examination, or conditional release of individuals.31
The Act does not specifically authorize regulations related to mandatory vaccination
programs, nor do there appear to be any regulations regarding the implementation of a
mandatory vaccination program at the federal level during a public health emergency.32
As noted above, state and local governments have the primary responsibility for
protecting the public health, and this has been reflected in the enactment of state laws
pertaining to public health and establishing procedures during a public health emergency.
Any federal mandatory vaccination program applicable to the general public would likely
be limited to areas of existing federal jurisdiction, similar to the federal quarantine
authority.33 Generally, federal regulations authorizing the apprehension, detention,
examination, or conditional release of individuals are applicable only to individuals
coming into a State or possession from a foreign country or a possession.34 This
limitation on federal jurisdiction acknowledges that states have the primary responsibility
for protecting the public health, but under certain circumstances, federal intervention may
be necessary. Any federal mandatory vaccination program applicable to the general
public would likely incorporate similar jurisdictional limitations.
28 Id.
29 Id. Quarantine provisions are located in Section 604 of the Model Act.
30 42 U.S.C. 264. Originally, the statute conferred this authority on the Surgeon General;
however, pursuant to Reorganization Plan No. 3 of 1966, all statutory powers and functions of
the Surgeon General were transferred to the Secretary.
31 42 U.S.C. 264(c).
32 For more information on federal vaccination policy, see CRS Report RL31694, Smallpox
Vaccine Stockpile and Vaccination Policy
.
33 See supra note 2.
34 42 U.S.C. 264(c). However, such regulations may provide for the apprehension and
examination of “any individual reasonably believed to be infected with a communicable disease
in a qualifying stage and (A) to be moving or about to move from a State to another State; or (B)
to be a probable source of infection to individuals who, while infected with such disease in a
qualifying stage, will be moving from a State to another State.” 42 U.S.C. 264(d).