It seems to me that columnist Mark Davis at The Dallas Morning News has it right in his column yesterday with respect to the human papillomavirus (HPV) vaccination executive order issued last Friday by Texas Governor Rick Perry. Perry's Executive Order RP65 requires* all girls in the state age 11 and 12 to receive the HPV vaccine prior to entering sixth grade, effective September 2008 (*except for those girls whose parents choose to opt their daughters out for reasons of conscience, including their religious beliefs).
About the mandated HPV vaccination Mark Davis writes:
We have to figure out whether the HPV shots belong on the short list of things we are going to allow the state to require. Those who fear the slippery slope are not unreasonable: What's the next thing the state is going to decide is so good for us that decision-making is taken away from families?
But I have always felt that the slope is not so slippery if we distinguish between genuinely good ideas and bad ideas. Those judgments will differ, but as far as it goes, it seems that a state obligation to inoculate our daughters against a virus that can lead to cancer is not the most egregious government overreach of our times.
As Davis also recognizes, at its most basic, this is a classic collision of interests. On the one hand, what is the limit of a government's right (and obligation!) to regulate for the general welfare of the governed, and on the other, what is the extent of an individual's right to live his or her life free from state regulation?
In an article for the American Journal of Public Health (April 2005, Vol 95, No. 4), Lawrence O. Gostin wrote about this collision of interests:
A century ago, the US Supreme Court in Jacobson v Massachusetts upheld the exercise of the police power to protect the public’s health. Despite intervening scientific and legal advances, public health practitioners still struggle with Jacobson’s basic tension between individual liberty and the common good.
In affirming Massachusetts’ compulsory vaccination law, the Court established a floor of constitutional protections that consists of 4 standards: necessity, reasonable means, proportionality, and harm avoidance. Under Jacobson, the courts are to support public health matters insofar as these standards are respected.
If the Court today were to decide Jacobson once again, the analysis would likely differ—to account for developments in constitutional law—but the outcome would certainly reaffirm the basic power of government to safeguard the public’s health.
I possess no formal training in civic law, but from what I know about it at this point, Executive Order RP65 seems to meet the Jacobsen legal standard. It also seems highly likely to me that a legal challenge will be made against this mandate and then we'll all know whether it really does pass this test--or even whether a new standard will evolve.
Additionally, it's been argued to me that Perry should have formulated his executive order to allow parents to opt-in to the vaccination, rather than opting-out of it. Opt-in approaches have been proposed in school districts in some communities with respect to comprehensive sex education, but wouldn't an opt-in only approach in either case be more costly for a school district to administer and also result in lots less participation from the students? That being the case, our society would then suffer a preventable harm.
Texas now requires (pdf file) vaccination against Hepatitis B for every student, K through 12. I don't see the difference between that requirement and Perry's order for the likewise communicable disease of Human papillomavirus.
But, got a different opinion? Spell it out in a comment and let me know.
No comments:
Post a Comment