American Journal of Law & Medicine

The End of Jacobson's Spread: Five Arguments Why an Anti-Intoxicant Vaccine Would Be Unconstitutional

I. INTRODUCTION                                                 58 II. IS ADDICTION A DISEASE?                                     61  A. THE DISEASE MODEL OF ADDICTION                              61  B. CRITICISMS OF THE DISEASE MODEL                             65  C. COURT CONFUSION: THE SUPREME COURT'S JURISPRUDENCE  ON ADDICTION                                                   70 III. HOW TRADITIONAL AND ANTI-INTOXICANT VACCINES OPERATE       74  A. TRADITIONAL VACCINES                                        74  B. ANTI-INTOXICANT VACCINES                                    76 IV. JACOBSON'S EXPANSIVE SPREAD--A BRIEF LEGAL HISTORY OF VACCINE MANDATES                                                79  A. GROUND ZERO: THE BENCHMARK DECISION OF JACOBSON v.  MASSACHUSETTS                                                  79  B. THE PRECEDENT STANDS                                        82  C. WILL MORE RECENT JURISPRUDENCE INOCULATE AGAINST  FURTHER SPREAD?                                                85 V. FIVE ARGUMENTS FOR STEMMING JACOBSON'S SPREAD                91  A. REASONS A COURT SHOULD APPLY THE FUNDAMENTAL RIGHTS  TEST TO ANALYZE AN ANTI-INTOXICANT MANDATE                     91   1. ADDICTION is Not a Disease    91   2. Anti-intoxicant Vaccines Address Behavior, Not Addiction   94   3. Anti-Intoxicant Vaccines Do Not Target Organic Pathogens   97   4. Anti-Intoxicant Vaccines Are Only Practically Necessary    98  B. AN ANTI-INTOXICANT VACCINE MANDATE WOULD FAIL A  FUNDAMENTAL RIGHTs/STRICT SCRUTINY ANALYSIS                   100  C. AN ANTI-INTOXICANT VACCINE MANDATE WOULD FAIL UNDER THE  JACOBSON STANDARD                                             103 VI. CONCLUSION                                                 105 

I. INTRODUCTION

In December 2014, "The Happiest Place on Earth" became ground zero for an outbreak of a highly infectious viral disease. (1) While enjoying the attractions at Disneyland, the world famous theme park in Anaheim, California, forty-two park goers contracted the measles virus. (2) The contagion spread rapidly to family and community members when the vacationers returned home, infecting 147 people across the country. (3) Although no deaths were reported, twenty percent of those who contracted measles during the outbreak were hospitalized. (4)

Measles remains one of the leading causes of death in young children worldwide, but it had been considered eradicated in the United States for over a decade, thanks to the widespread administration of the Measles, Mumps, and Rubella (MMR) vaccine required by every state's mandatory vaccination schedule. (5) However, exemptions from vaccine mandates for philosophical and religious reasons have risen in recent years, meaning more children are susceptible to diseases that were believed to no longer exist in the United States. (6)

The Disneyland outbreak and aftermath fanned the flames of a centuries-old--yet still highly polarizing--debate about vaccinations, and more precisely, vaccination mandates. (7) The U.S. Supreme Court sanctioned the practice of immunization mandates, including those without philosophical or religious exemptions, in 1905 in the landmark opinion of Jacobson v. Massachusetts. (8) Since then, the courts have never looked back, giving deference to precedent set back in the beginning of the twentieth century. Advances in science and adapted uses of vaccines should now cause the courts to revisit the reach of this 110-years-old decision and question such blind adherence.

Scientists are making significant progress in developing anti-intoxicant vaccines, (9) which trigger the immune system to prevent specific chemical compounds from reaching the brain where they produce pleasurable psychotropic effects. Although not market-ready, anti-intoxicant vaccines are becoming more viable and are already being proposed as a cure for substance use disorders. (10) The theory is this: if our bodies were primed to prevent experiencing pleasure from taking drugs (i.e., the chemical could never produce a "high"), then we would not engage in the behavior of recreational drug use. (11) Because the utility of engaging in drug use would be eliminated, people would not go on to develop problematic drug use, including addiction. (12)

Mandating immunization against drugs' effects has been argued as a means to eliminate addiction in our society. (13) Some may regard this as an appealing option, especially given the recent rise in opioid addiction prevalence and related deaths (indeed, as demonstrated by the Disneyland measles outbreak, calls for widespread vaccination increase after public health crises). (14) Given the deference to Jacobson shown by all courts that have yet to take up the question of its lasting impact, some might say that mandating immunization against drugs' effects is constitutional without much further analysis.

While courts do routinely cite Jacobson to summarily dismiss claims that vaccine mandates violate substantive due process rights, this article presents five reasons courts could find that Jacobson's, holding would not authorize a universal anti-intoxicant vaccine mandate on due process grounds. (15) The first four arguments rely on the Supreme Court's recent substantive due process case law, particularly the recognition of the fundamental right to refuse unwanted medical treatment. When this right is at issue, a court should apply strict scrutiny, only upholding a mandate if it is in response to a sufficiently compelling government interest and is narrowly tailored to achieve that purpose. (16) A universal anti-intoxicant vaccine mandate would fail this standard, primarily because it is overbroad and because alternative effective means exist to address problematic substance use.

The first path toward invoking strict scrutiny is to acknowledge that Jacobson only applies to diseases and that addiction is not a disease. Although the predominant theory is that addiction is a "chronic, relapsing brain disease," (17) this is widely disputed and should not be accepted as fact. Courts should refuse to conclude that addiction is a disease, and therefore a government regulation to mandate universal vaccination would fall outside the holding in Jacobson. Instead, an anti-intoxicant vaccine mandate would implicate the fundamental right to refuse medical treatment and face strict scrutiny analysis.

Second, even if a court finds that addiction is a disease, anti-intoxicant vaccines do not directly target the genesis of addiction; rather, they target the behavior of ingesting drugs by preventing the drug from producing pleasurable effects. (18) Thus, Jacobson would not apply because the vaccine operates, in effect, by regulating behavior, not strictly preventing disease. Given the difference between an anti-intoxicant vaccine and the vaccine at issue in Jacobson (which strictly prevented smallpox infection without preventing certain behavior), courts should consider the fundamental right to refuse unwanted medical intervention and invoke strict scrutiny to adjudicate an anti-intoxicant vaccine mandate.

Third, assuming courts hold that addiction is a disease and that anti-intoxicant vaccines address the disease, judges should determine that mandates for vaccines that target non-animated pathogens should be subject to strict scrutiny. To date, courts have only upheld mandates for vaccines that target diseases caused by bacteria or viruses. (19) Anti-intoxicant vaccines target drugs, non-living substances that typically require self-administration (i.e., unable to produce affects in a host by themselves), requiring more searching analysis than for traditional vaccines.

Fourth, judges should delineate between vaccines that are medically necessary to address the targeted disease and those that are only practically necessary. Vaccine mandates in the former category, which would include highly contagious airborne diseases, would remain under the deferential Jacobson standard; those in the latter, like anti-intoxicant vaccines, would be subject to strict scrutiny.

Finally, even if courts decide that the Jacobson standard applies, courts should find an anti-intoxicant vaccine mandate fails under the four factors elucidated by the Supreme Court in that decision. (20) In particular, the mandate is not a reasonable response to the public health concern of problematic drug use because it is vastly over-inclusive and because obliging individuals to receive anti-intoxicant immunization may cause harm via collateral consequences, such as interference with medical treatment.

Part II discusses whether addiction is a disease, in medical, sociological, and legal terms, laying an important foundation for considering whether an anti-intoxicant vaccine mandate is an appropriate response. Part III gives a brief history of how vaccines work to protect individuals and the public, and how anti-intoxicant vaccines are similar and different from traditional vaccines. Part IV examines the legal precedent for vaccination mandates (Jacobson and progeny) and highlights courts' unanimous adherence to precedent, despite scholars questioning the constitutionality of new vaccine mandates in light of recent vaccine developments and the Supreme Court's fundamental right/strict scrutiny jurisprudence. Part V presents the five arguments a court could accept to hold Jacobson does not extend to a universal anti-intoxicant mandate. Part VI briefly summarizes and concludes. (21)

II. IS ADDICTION A DISEASE?

Fundamental to the discussion regarding the appropriateness of universal vaccination against drug use is whether addiction can definitively be classified as a disease. (22) This part gives a brief history on the development of the disease theory of addiction and some of the major criticisms of this approach. It will also explore how the legal system has viewed addiction over the past century, which forms an important basis for how a court might confront the issue of an anti-intoxicant vaccine mandate.

A. THE DISEASE MODEL OF ADDICTION

Addiction is a major public health concern that affects many areas of society. Three quarters of Americans view drug use and addiction across the country as a serious problem or crisis. (23) By some estimates, over forty million people (16% of the population) are considered addicted to licit or illicit substances and an additional eighty million people (32%) use drugs in "ways that threaten health and safety." (24) Some 90% of addicted adults began consuming psychoactive substances when they were younger than eighteen years of age, with typical onset of addiction occurring near age twenty. (25) The National Institute on Drug Abuse (NIDA) claims substance abuse generates over $700 billion annually in costs associated with healthcare, criminal justice, and lost employment. (26) Despite these cited costs, only about one-tenth of people deemed addicted access substance use disorder treatment. (27)

Treatment is molded by the dominant theories of the nature of addiction. (28) Currently, the most commonly accepted theory of addiction is the disease model. (29) The concept of addiction as a disease was first fully articulated in the United States in the late eighteenth century by Dr. Benjamin Rush. (30) Rush defined alcoholism as a progressive disease characterized by inability to refrain from drinking. (31) Rush introduced four primary tenets to this new conception of alcoholism: the causal agent is the substance (alcohol), use of the substance is compulsive, alcoholism is a disease, and the cure is total abstinence. (32) These concepts were subsequently applied to addiction to other drugs. (33)

The temperance movement claimed Rush as its founder and heavily influenced the acceptance of the disease theory throughout the nineteenth century, placing the blame for alcoholism in spirits rather than the drinker. (34) Although the temperance movement later shifted focus to demand outright prohibition of alcohol, the disease theory persevered and found a new home with Alcoholics Anonymous (AA) beginning in the 1930s. (35) However, the theory of addiction espoused at AA meetings did not stress the substance as the causal agent per se, but asserted that addiction developed within the individual. (36)

The classic definition of the disease theory can be found in the mid-twentieth century works of E.M. Jellinek, who advocated that alcoholism was not a moral failure of the individual afflicted, but instead a well-defined physical disorder. (37) Jellinek claimed that certain types of alcoholism were rightly considered diseases because of the development of tolerance, craving, loss of control, and inability to abstain associated with repeated alcohol use. (38) As they did with Rush's works, medical professionals would apply Jellinek's theories to substance addiction generally. (39)

By the 1960s, the disease model of addiction seemed to have prevailed. Social policy was driven, at least nominally, by the desire to treat and rehabilitate addicts. (40) Many professional organizations, including the American Medical Association, the American Psychiatric Association, and the World Health Organization, categorized addiction as a disease during this period. (41)

The modern iteration of the disease model is that addiction is a "chronic, relapsing brain disease that is characterized by compulsive drug seeking and use, despite harmful consequences." (42) Beginning in the 1990s, significant advancements in scientists' understanding of the brain and discoveries of the effects that drugs had in the brain helped to further develop the disease theory. (43) Brain imaging allowed researchers to show how substance use impacts brain functioning, including how repeated use can physically change brain structure. (44) As one scholar explains, "[a]ddictive substances hijack the brain's reward system, weakening our resolve to make wise choices even when painful consequences are sure to result." (45) Disease model advocates cite the changes in brain function as proof that substance abuse is a brain disease. (46)

While addiction is most often regarded as a chronic brain disease, analogies to more traditional diseases abound. (47) Some have even ventured to call addiction a communicable disease, claiming it spreads through the endorsement of users. (48) For instance, if a person has little or no negative effects from drug use, she will encourage others to start and will likely find success. (49) If, however, she is severely and negatively affected by the addiction, others around her will not be as likely to start using. (50) Another oft-made argument is that even if addiction is not contagious, it is associated with diseases that are. (51) Sharing drug paraphernalia can transmit HIV, Hepatitis B and C, and tuberculosis. (52) The argument is that these diseases would not spread as rapidly if the affected individuals were not engaging in problematic drug use. (53) Addressing addiction, according to this argument, is stopping the spread of contagious disease. (54)

Over the past several decades, "addiction" expanded to include any seemingly problematic use of substances as well as other behaviors like gambling, internet use, and sex. (55) Disease model advocates use the same evidence of brain structure changes linked to these behaviors to proclaim compulsive engagement as diseases. (56)

Increased attention to impacts that drugs have on the brain has propelled the search for medical interventions to address addiction. (57) Methadone treatment for opioid addiction is a prime example of an innovation spurred by the disease model. Despite the availability of methadone and other drugs, abstinence-only ideology persists as the predominant modality in drug treatment. (58) Anti-intoxicant vaccines may therefore represent an approach that blends the medical approach touted by disease model advocates with the enduring demand for total abstinence.

B. CRITICISMS OF THE DISEASE MODEL

Although the disease model currently predominates, it is not and has never been universally accepted. Rather, debate about the nature of addiction has existed for hundreds of years and predates the modern disease model. (59) Many scholars view the disease model as a logical outgrowth of an era when society rapidly redefined various forms of perceived deviance as sickness, including juvenile delinquency and even homosexuality (for which the medical community retracted the disease label later in the same century). (60) As one scientist explained, "The statement that '[addiction] is a disease' is most misleading, since it conceals that a step in public policy is being recommended, not a scientific discovery announced."(61) Consequentially, critiques of the foundation and efficacy of the disease model are numerous.

An initial criticism is that there is no consensus on what exactly is meant by claiming addiction is a disease, even if most agree that it is. (62) Science has not yet been able to demonstrate the genesis of the disease, even with discoveries on how certain brain functioning and genetics may play a role. (63) Indeed, the only manners of diagnoses are through observation of behavior ostensibly caused by addiction or through testimony of the addicted person. (64)

The lack of uniformity in defining addiction as a disease is most apparent when considering the treatments available for addiction. Although some medical interventions like methadone exist, the vast majority of treatment programs rely on the willpower of the individual in treatment to succeed, an ironic assumption given that addiction under the disease model necessitates the inability to control one's substance use. (65) Simply dubbing addiction a disease has done seemingly little to aid medical professionals in diagnosing or treating the condition. (66)

Critics observe the current treatment modalities based on the will of the participant and argue this is evidence that addiction is in fact not a disease. These critics argue that addicted people have a choice to use drugs (i.e., it is not simply a disease), despite knowing their negative consequences, or to choose alternative paths, and their choices are motivated by health, financial, and interpersonal concerns. (67) Support for this theory comes from studies showing reduced drug use among individuals who have been incentivized, generally through monetary means, to remain abstinent. (68) These studies directly conflict with the disease model's assertion that addicts cannot control substance intake and differentiates addiction from other diseases because an addicted person can choose whether or not to remain addicted. (69)

Another criticism of the disease model rebukes the notion that addiction is chronic (i.e., people are addicted for life) by noting most people naturally outgrow their addiction. (70) In a large study, researchers found that over 90% of people addicted to alcohol, marijuana, and cocaine simply grew out of their addiction, with the average timeframe lasting 14, 6, and 5 years, respectively. (71) Nearly 84% of people considered addicted to nicotine stopped their dependency after an average of twenty-six years. (72) Additionally, only a quarter of the people who recovered accessed treatment, suggesting most will recover without formal intervention. (73) This research corroborated three previous national studies, each finding that most people simply outgrew their addiction by age thirty and did not access professional treatment. (74) Opponents of the disease model argue this evidence contradicts the claim that addiction is a chronic progressive disease, the symptoms of which can only be managed. (75)

Critics also target disease model advocates' reliance on changes in brain structure and function of addicted people. Although recurrent drug use can alter the brain, disease model proponents generally fail to acknowledge that these brain changes occur with any new activity and, indeed, are typical of how the brain functions normally. (76) Our brains develop neural pathways that become more entrenched the more frequently we engage in specific behavior. (77) This explains why activities become easier through repetition and how habits form. (78) Drug use stimulates this same neural process, and addicted people may continue to use drugs due to the learned and anticipated effects that they produce. (79) This has led many to claim addiction is more akin to a learning disorder than disease. (80) By ignoring normal brain changes that occur as a result of learning, proponents can extend the disease model to evermore "addicting" stimuli, justifying the labeling of behaviors like gambling, sex, and eating as highly addictive. (81)

Another major censure of the disease model is that, by focusing on the individual, we ignore crucial environmental and social factors. (82) Experiencing trauma is highly correlated with addiction, but this is brushed aside in search of the origins of addiction within the person's brain or genetics. (83) Proponents of viewing addiction as a learning disorder rely on this correlation to argue that addiction is a learned response to hardship (i.e., a coping mechanism) brought on by a variety of factors, including poverty, racism, and violence. (84)

The applied model of addiction has important implications for treatment. If addiction is a disease, medication and other biologically based therapies, including anti-intoxicant vaccines, may be fitting. (85) If addiction is a learning disorder or related condition triggered by environmental factors, responses to improve social conditions, like reducing poverty, are more appropriate. (86) Although the primary treatment modality remains reliant on abstinence obtained through willpower, the disease model and its emphasis on the neurological and genetic impacts of addiction promote the development of medical interventions. This diverts focus from approaches that emphasize betterment of social conditions of addicted individuals and their communities. (87) It also impedes harm reduction-centered approaches, which have demonstrated reduced negative consequences associated with addiction but do not require total abstinence. (88) Regardless of which approach is better policy, the prevailing theory of addiction determines the means and ends of addiction research, treatment, and funding. (89)

Two additional points are important for further analysis, both of which apply despite whatever theory of addiction to which one subscribes. First, a distinction remains between the often-conflated behavior of drug use and the condition of drug addiction. Addiction may be a serious public health concern, but the proportion of people that become addicted relative to those who try illicit drugs is small. Roughly half of people aged twelve years or older will try an illicit drug at some point in their life, and about ten percent of this population has used an illicit drug in the past month. (90) Of those that do try an illicit drug, the vast majority of people - upwards of eighty to ninety percent - do not become addicted, even to drugs deemed "highly addictive." (91) Thus, drug use alone is not sufficient to cause addiction. (92) Even though society considers addiction a widespread problem, only five to ten percent of the population will experience a drug addiction in their lifetime. (93)

Crucially, we must also recognize that initial drug use is a choice. Even N1DA, the agency most prominently promoting the disease model of addiction, admits "the initial decision to take drugs is mostly voluntary." (94) In the end, even those who accept that addiction is a disease must admit the initial drug use typically involves a choice to engage in the behavior. (95) An intervention designed to target addiction through preventing drug use, like an anti-intoxicant vaccine, would therefore interfere with this choice.

Second, most agree addiction can be prevented through non-medical interventions. (96) These can include education, programs to build self-esteem and teach critical decision-making skills, and addressing environmental factors and trauma. (97) Although professionals differ on how prevention programming should operate, they concur that prevention of addiction is possible without medical involvement. (98)

Perhaps because of the longstanding debate about the nature and causes of addiction, society's response to addiction is convoluted. Despite the widespread acceptance of disease theory, vestiges of the strictly behavioral/deviant theories still haunt our approach to drug use, resulting in a punitive approach. (99) For example, the modern disease model took a strong hold in the 1960s and 70s, but the 1980s saw a major increase in arrest and incarceration for drug-related offenses, the vast majority of which were for possession, not sales. (100) Even today, most of the money spent to stop drug use is through law enforcement efforts instead of treatment and prevention. (101) If addiction is a disease, it is exceptional in that its primary symptom is punishable by arrest and incarceration. (102) As the reader will see in the next subpart, society's ambivalence towards the treatment of addiction is reflected in our legal system.

C. COURT CONFUSION: THE SUPREME COURT'S JURISPRUDENCE ON ADDICTION

The debate over the nature of addiction has influenced Supreme Court jurisprudence over the past century. Through a string of decisions, the Court has developed a similar schism as is seen among practitioners and researchers, characterizing addiction as both a disease to be treated and as a behavioral problem to be punished. (103)

The Supreme Court first acknowledged addiction as a disease in 1925. In Under v. United States, a physician challenged his conviction under the federal Harrison Narcotics Tax Act for prescribing morphine and cocaine as relief for symptoms of addiction, claiming his actions were allowed under the law. (104) The Supreme Court unanimously reversed on the grounds that to uphold the conviction would be an unlawful federal encroachment on a state's power to regulate medicine, a rationale that has been mostly abandoned in subsequent decisions. (105) However, the hinder opinion reads, "[people with addictions] are diseased and proper subjects for [medical] treatment." (106) In recognizing the ability of physicians to engage in the ordinary and good faith practice of medicine, the Court offhandedly categorized addiction as a disease without much deliberation. (107)

Then in 1962, the Court would issue perhaps its most famous decision on addiction: Robinson v. California. (108) Robinson was convicted under a California statute that made it illegal to "be addicted to the use of narcotics" based on a police officer's observations of suspected signs of intravenous drug use on Robinson's arms and testimony asserting Robinson had admitted to past drug use. (109) Robinson challenged this outcome, arguing the statute under which he was convicted criminalized his status as an addict and therefore violated the Eighth Amendment's prohibition on cruel and unusual punishment as applied to the states under the Fourteenth Amendment's due process clause. (110) The Supreme Court agreed with Robinson and overturned his conviction. (111)

The Robinson Court acknowledged that states have broad authority to regulate use, manufacture, and sale of drugs, including criminalizing these acts or coercing individuals into treatment. (112) However, Robinson was not convicted of any of these acts; he was convicted solely on the grounds that he was addicted to narcotics. (113) The majority opinion unequivocally categorized addiction as a disease. (114) It even appeared to accept that addiction may be contagious, noting, "it is apparently an illness which may be contracted innocently or involuntarily." (115) The Court analogized the statute at issue to a hypothetical law criminalizing the status of being "mentally ill, or a leper, or to be afflicted with a venereal disease" or "having a common cold," which would constitute cruel and unusual punishment. (116) Robinson seemed to solidify the law's recognition of addiction as a disease.

Just six years later the Supreme Court qualified its position on addiction in Powell v. Texas. (117) Powell was convicted of public drunkenness and fined twenty dollars. (118) He appealed, claiming his intoxication was an involuntary manifestation of his alcoholism and to punish him for it would constitute cruel and unusual punishment. (119) In a plurality decision, the Court upheld the conviction by distinguishing between the status of being addicted, which was the issue in Robinson, and the condition of being intoxicated, which the Court considered a behavioral choice. (120) Justice Marshall questioned predicating legal theory on the disease model of addiction when medical professionals could not even agree on a common definition for addiction. (121) Ultimately unwilling to accept that no criminal responsibility can exist when an act is driven by compulsion, even if considered an involuntary symptom of a disease, the Court dismissed Powell's arguments. (122) The result of the opinion is a bifurcation allowing no criminal liability for merely being addicted but acceptable prosecution for actions that may result from, and may indeed be the primary symptom of, such addiction. (123)

Twenty years later, in 1988, the Court again considered the nature of addiction in Traynor v. Turnage. (124) In Traynor, two honorably discharged military veterans sought an extension of time to use their educational benefits under the GI Bill, arguing they had been disabled by alcoholism during the ten year period in which veterans could exhaust the benefits. (125) The Veterans' Administration denied the requests on grounds that alcoholism constituted "willful misconduct." (126) The veterans appealed, contending the denials violated the Rehabilitation Act, which prohibited discrimination on the basis of a handicap (here, alcoholism). (127) The Supreme Court denied any relief for the veterans after scrutinizing the legislative history of the GI Bill and the Rehabilitation Act. (128)

Traynor was decided using canons of statutory interpretation, but the Court did call the disease model of addiction into question. (129) Quoting one of the lower court's decisions, the Court agreed that there is "a substantial body of medical literature that even contests the proposition that alcoholism is a disease, much less that it is a disease for which the victim bears no responsibility." (130) Building on the distinction recognized in Powell, the majority noted that drinking alcohol is not wholly involuntary, even if alcoholism is a disease. (131) The Court concluded it need not "decide whether alcoholism is a disease whose course its victims cannot control" because "[i]t is not [the Court's] role to resolve this medical issue on which the authorities remain sharply divided. …

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