Over the past five years, the State of South Caledonia has been afflicted by seven large epidemics of viral gastroenteritis caused by norovirus, the most common cause of viral gastroenteritis in the United States (see https://www.cdc.gov/norovirus/). These epidemics have affected groups of persons in schools, apartment complexes, and, in one case, a large emergency shelter that was being used to house victims of a flood in the capital of South Caledonia.
The seven epidemics have causedmany thousands of people to become ill with fever, abdominal pain, nausea, vomiting, and diarrhea. Of the thousands of cases there have been only two deaths, both in elderly persons living in extended care facilities. Only a few persons have had to be hospitalized. Nearly all persons with the disease have recovered quickly within about three or four days after the onset of their illness. On the other hand, many parents have had to miss work, either because they were sick themselves, or because they had to stay home with their sick children.
A year ago, Humon, Inc., a United States pharmaceutical company, licensed the first vaccine against norovirus infection. The vaccine is called NoroShield®. It is a genetically engineered vaccine. A full series includes two intramuscular doses one month apart. Its efficacy is 95% against norovirus gastroenteritis one month after the second injection. It was licensed by the U.S. Food and Drug Administration as safe and effective for persons aged three years and older. The price of the vaccine is $119 per dose. The only adverse event associated with the vaccine is a sore muscle at the site of injection. NoroShield® is the only norovirus vaccine on the market.
A month ago, the South Caledonia Legislature passed, and the Governor signed, a bill that requires all persons in South Caledonia aged three years and above to receive a full two-dose series of norovirus vaccine within the six months, or face a fine of $750. The cost of the vaccine and administration are being borne entirely by the state. The new law specifies that exemptions to the vaccination requirement may be granted for children and adults who are medically unfit for vaccination with NoroShield®. To obtain such an exemption, persons must have their physician sign a state exemption form.
Mr. Russell Dalrympleis an adult resident of a small town within South Caledonia. Recently, he was notified by the chair of the local board of health that he must receive a full series of NoroShield®. He has no diseases that would cause him to be unfit for vaccination, and he does not wish to pursue an exemption. You are working as an intern at a local law firm. Dalrymplehas come to your law firm seeking advice on a possible lawsuit against the state, in which he would claim that the norovirus vaccination requirement is a violation of his personal autonomy under the 14th amendment.
You are working as an intern for the law firm, and the partner handling the case has come to you to ask you to write a brief memo about the application of a particular Supreme Court case, Jacobson v. Massachusetts (U.S. Supreme Court, 1905),on Mr. Dalrymple'scase. Specifically, he wishes you to write a short memo on the following question:
Would Mr. Dalrymple have a viable argument in court that the norovirus vaccination requirement failed the public health necessity holding of Jacobson?
Write a memo, not exceeding 600 words, analyzing this question. Assume that the public health necessity holding of Jacobson is still good and valid law and has not been superseded or modified by any subsequent cases. You should look at the public health necessity holdings of the Jacobson case, and apply them to the current case of Mr. Dalrymple.
You should base your answer only on materials assigned as readings (e.g., the case itself or Gostin) or presented in class through Class 5. In your answer, cite only to these materials. This exercise does not require you to do any research beyond what was assigned as readings or presented in class. Inclusion of such research material is risky because it may be misquoted or misinterpreted. The instructors advise you not to include such materials.
Like many legal and policy questions, the question you must answer for this exercise does not necessarily have any right or wrong answers. Your answer will be graded on how you follow directions, state a clear conclusion at the beginning of your essay, use structured reasoning and argument (for example, your application of the Jacobson holdings to the Dalrymplecase), and write clearly.