New York's vaccination law does not violate the Constitution

A subculture in American society does not believe in vaccinating children. That belief runs afoul of New York law, which requires that parents vaccinate their kids before sending them to school. Some parents have challenged that law as unconstitutional. The Court of Appeals upholds the law and dismisses the case.

The case is Phillips v. City of New York, decided on January 7, only two days after it was argued. Plaintiffs raise a variety of constitutional theories. The first draws from substantive due process, rooted in the Fourteenth Amendment. But that argued died in 1905, when the Supreme Court said the state can mandate compulsory vaccinations.

The second theory draws from the Free Exercise Clause, which protects religious freedom. The Supreme Court has never directly addressed that argument, but it hinted at it in 1944, stating that a parent "cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death." The Second Circuit (Lynch, Chin and Korman [D.J.]) agrees with the Eighth Circuit that the mandatory vaccination law does not conflict with religious freedom, especially since state law allows for exemptions based on sincere religious beliefs. Under that exemption, "in the event of an outbreak ... of a vaccine-preventable disease in a school," the state "may order the appropriate school officials to exclude from attendance" any non-vaccinated students.

Another theory invokes the Ninth Amendment, everybody's favorite backup Amendment. Let's face it, the Ninth Amendment is vague and no one really know what to do with it. It reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Constitutional historians know that it made its last significant appearance in a Supreme Court case back in 1965, when the Court identified a right to privacy, and Justice Arthur Goldberg invoked the Ninth in concurrence in support of that holding. The Ninth does not provide any independent source of rights, the Second Circuit notes, and it cannot help the plaintiffs here.