Judicial Protection of Medical Liberty

Abstract

The article discusses the history of vaccine jurisprudence in the courts and in particular the lower courts' failure to engage meaningful constitutional review of state vaccination mandates. The lack of separation of powers in conjunction with the National Childhood Vaccine Injury Act and the Supreme Court's interpretation of the Act has resulted in unfettered discretion among legislators to mandate vaccines in order for the public to obtain necessary and very valuable services. Since late 2020, the Supreme Court has indicated that the judiciary may take a more active role in reviewing COVID-19 mandates and this may signal that the judiciary will also review vaccine mandates generally with more care. The balance of powers relative to vaccination law and policy that has been lost over a century of poor jurisprudence in the lower courts may be restored to protect individual liberties adequately.