Annotate in Word
Pigments and Vaccines: Evaluating the Constitutionality of Targeting Melanin Groups for Mandatory Vaccination.
“The Constitution deals with substance, not shadows.”
—Justice Field, Cummings v. Missouri[274]
INTRODUCTION
Natalie, 23, was a regular customer at her local tanning salon.[ 2] During Natalie’s sophomore and junior years in high school, she would tan for “12–15 minutes at least once a week.”[ 3] In college, Natalie started to tan regularly, “about once every two weeks.”[ 4]
In addition to using the tanning salon, Natalie spent summers in Florida.[ 5] While in Florida, Natalie would lie outside to tan without any sunscreen or tanning lotion.[ 6] Unbeknownst to Natalie, exposure to the Florida sun and the trips to the tanning salon caused her to develop brown spots on her back.[ 7]
During a visit to her doctor, Natalie’s doctor biopsied her skin, which revealed melanoma in situ (skin cancer at its earliest stage).[ 8] Doctors cured Natalie’s melanoma with surgery; however, the procedure lasted over 3 hours.[ 9] After surgery, Natalie suffered extreme pain and returned home to recover with the assistance of her mother and a dermatologist.[10] Unfortunately, the melanoma damaged Natalie’s body, leaving “Frankenstein” scars.[11]
In addition to the dangers resulting from the overuse of tanning salons and the underuse of sunscreen, sun exposure often damages the skin and harms individuals with lighter skin pigments at a disproportionately higher rate.[12] Currently in the United States, “[m]ore than 9 out of 10 cases of melanoma are diagnosed in non-Hispanic whites.”[13] Furthermore, research suggests that individuals genetically developed darker skin pigmentation to resist the sun’s ultraviolet rays and to avoid deadly skin cancer.[14]
In response to the demands for melanoma treatments, laboratories are in the process of developing vaccines.[15] The use of vaccines to fight cancer is nothing new.[16] As of October 2016, there were a handful of cancer-related vaccines available in the United States.[17] Three of these vaccines, Gardasil®, Gardasil-9®, and Cervarix®, prevent cancer from some forms of the human papillomavirus (HPV).[18] PROVENGE®, a treatment vaccine, alleviates active prostate cancer damage, and the viral therapy of Imlygic® treats “metastatic melanoma that cannot be surgically removed.”[19]
Though laboratories are still developing skin cancer vaccines, various state legislatures have held debates on mandating cancer vaccines.[20] For example, in an effort to protect more of the public from the cancer-causing HPV, Virginia’s legislature passed compulsory HPV vaccination requirements for female students.[21] If a new preventative vaccine came out targeting skin cancer, state legislators might consider targeting a particular demographic similar to Virginia Code section 32.1–46(A)(12).[22]
The legal vehicles for individuals to oppose mandatory vaccinations include claims for violating the United States Constitution and, potentially, asserting that state actors violated 42 U.S.C. §1983.[23] Despite individuals opposing mandatory vaccinations for a variety of reasons, courts continuously uphold vaccination programs.[24] Legislators, one day, may intend to establish a vaccination program targeting skin cancer and preventing the spread among the most susceptible groups.[25] If legislators decided to develop a vaccination program targeting and protecting individuals with low melanin content levels, could such a program clear judicial review?[26] With the advances of science and the historically recognized government interest to promote a healthy populace, mandatory melanin vaccination programs would likely surpass constitutional objections.
Section I of the commentary explains the scientific and social background of skin and skin color. Section II examines medical technology for determining melanin content of a specimen. Section III explores judicially blocked racial vaccination programs that targeted Chinese individuals during the bubonic plague. Section IV outlines both substantive due process and equal protection review by the Supreme Court. Section V applies a substantive due process analysis to a hypothetical melanin-based vaccination program. Section VI evaluates the same hypothetical vaccination program with respect to an equal protection analysis.
I. THE DEVELOPMENT OF SKIN AND SKIN COLOR
Skin, simply stated, is an organ that covers an individual’s body.[27] Researchers have found several attributes that can influence skin color.[28] Even though an individual’s skin composition would direct a certain pigmentation, individuals can alter their skin color as a personal choice.[29]
A. Physical Properties of Skin
The skin on a human body is a complex organ consisting of two layers: the outer layer (the epidermis) and the inner layer (the dermis).[63] Of all of the various vessels, follicles, and nerves on and beneath the skin, melanin and hemoglobin directly influence skin color.[64] For example, melanin and hemoglobin primarily determine skin color, whereas other chromophores only contribute slightly.[65]
Between melanin and hemoglobin, “melanin is by far the most important” in influencing skin color.[66] Melanocytes (pigment cells) “located in the basal cell layer of the epidermis, close to the dermis,” produce melanin.[67] The body produces melanin as either “eumelanin (black color) [or] phaeomelanin (red color).”[68] Additionally, tyrosinase plays a role in causing melanin production and adjusting skin complexion.[69]
Research suggests that the number of melanocytes among the human races is similar.[70] On the other hand, the ability of races to produce melanin varies enormously.[71] Moreover, pigmentation can be impacted by hormonal and other factors and ultimately modifies the “the amount, type, and distribution of melanin in the skin.”[72] Varying levels of melanin influence an individual’s skin pigmentation; however, researchers have found that additional conditions can influence melanin in individuals and racial groups.[73]
B. Changes to Skin Pigmentation
Some scholars attribute skin pigmentation in today’s society to an “out of Africa” theory.[74] The theory asserts that early environmental factors of nomads remaining in Africa contributed to darker skin.[75] Moreover, the theory asserts that individuals who migrated north developed lighter pigmentation.[76]
Regardless of whether the out of Africa theory is correct, dark skin gives substantial protection to the sun’s ultraviolet light, a protection lacking in paler skin.[77] Further, pale skin can either relate to a specific culture or develop as a skin condition.[78] Besides the skin condition of albinism,[79] the condition of vitiligo can be a subsequent factor in whether an individual develops cancer.[80] Researchers, nevertheless, find that “[a]lbinism and exposure to ultraviolet light appears to be the most important risk factor in the development of skin cancers.”[81] To prevent skin cancer, researchers assert that education can help reduce the risks of cancer among susceptible demographics.[82]
An individual’s melanin content is not confined to just genetic mutations.[83] For example, an individual’s melanin content changes by tanning.[84] Thus, an individual is not restricted to any particular melanin content with the ability to alter melanin production purposefully.[85] With recent advances in science, it is possible to articulate the changes of melanin content mathematically.[86]
II. MEDICAL TOOLS FOR UNDERSTANDING MELANIN
If a hypothetical vaccination program targeted citizens by melanin content, then the primary focus would essentially involve skin complexion.[30] Skin complexion can be identified at either at the macro levels of epidermis and dermis or at the micro level of melanin content.[31] When evaluating microlevel skin complexion, one could measure the content of melanin without considering ethnicity or race.[32]
A. Techniques for Analyzing Melanin Among Different Specimens
Though there are multiple methods for measuring melanin content depending on the specimen,[87] there is no standard method for measuring skin pigmentation in individuals.[88] For in vitro and cultured specimens, several methods are available for use.[89] For noninvasive techniques, “[a] handy type colorimeter or a spectral colorimeter is usually used for the observation of skin color.”[90]
Research suggests that analyzing melanin in tissue is more difficult than analyzing melanin in a cultured cell.[91] Melanin content can be measured either in cultures by focusing on either the melanin content per cell or by the melanin content per area.[92] For example, scientists calculate melanin content per cell “by dividing the amount of melanin by the number of melanin containing cells. …”[93]
Alternatively, multiplying melanin content per cell by the total number of cells can provide a number, often in nanograms, to determine melanin content per area.[94] Further, research indicates that two different individuals can have the same amount of melanin per cell but vary in the melanin per area.[95] Unlike measuring melanin content in cultured specimens,[96] an exact formula to determine melanin content of skin has been difficult to establish on living specimens.[97] However, advancements in science have provided a framework for evaluating melanin content.[98]
B. Measuring Melanin on an Individual’s Body
When evaluating melanin content on skin, research indicates that separating redness from inflammation is essential to the process.[99] One formula for evaluating melanin content is to use a “logarithm of the reciprocal of the reflectivity of skin to the ‘an apparent absorbance of skin.’”[100] To solve the formula, researchers “developed a new technique in which CM and CH could be estimated with more accuracy using a whole range of the spectrum of the skin,” called the Spectrum Resolution method (hereinafter SR method).[101]
The SR method employed by Masuda et al. used a CM-2002 spectrophotometer, made by the Japanese company Konica Minolta Sensing Inc., and an MX-16 mexameter, made by the German company Courage & Khazaka Electronic GmbH.[102] The scientific procedure performed by the researchers used “[t]he absorption spectrum of the skin … calculated from its reflection spectrum. The concentrations of melanin and hemoglobin were determined from the skin absorption spectrum by multiple regression analysis. …”[103] Masuda found that the results were the most satisfactory when employing the SR method using a 500- to 700-nm spectrum of light region rather than using typical visible light in the 400- to 700-nm region.[104] The method employed by Yuji Masuda is considerably far removed from the methods used by Dr. Kinyoun at the turn of the 20th century when attempting to vaccinate Chinese residents in San Francisco.[105]
III. THE SAN FRANCISCO VACCINATION ATTEMPT
Though there has never been a vaccination program targeting melanin groups, there have been historical attempts to vaccinate racial groups.[33] Because racial groups and melanin groups are similar in that physical color of skin might indicate a particular group, courts might compare previous holdings regarding racial vaccination attempts against a new melanin-based program.[34] Understanding how the courts previously reviewed racial vaccination provides a guidepost for legislators committed to vaccinating melanin groups in the interests of public health.[35]
A. Anti-Chinese Discrimination and Wong Wai
“Almost from the beginning of their settlement in California, the Chinese had been the objects of intense racial hostility.”[106] Chinese immigration began in California around “the early 1850s to mine for gold.”[107] After originally immigrating to mine gold, Chinese immigrants were recruited in large numbers “in the late 1860s to work on the construction of the Central Pacific Railway.”[108] By the 1860s, Chinese immigrants were publicly denigrated as “an inferior race” and a “degraded” people.[109]
Despite their hard work and accomplishments,[110] Chinese immigrants in California faced heightened racial tensions during the 1880s.[111] When the bubonic plague struck San Francisco in 1900, Californians targeted the local Chinese residents with the development of a new vaccination program.[112] Initial fear by the San Francisco Board of Health resulted in a resolution stating, “It is the sense of this board that bubonic plague exists in the city and county of San Francisco, and that all necessary steps already taken for the prevention of its spread be continued, together with such additional measures as may be required.”[113]
The “necessary steps” the board adopted required “that no Chinese person shall depart from the city without being inoculated with the serum called ‘Haffkine Prophylactic.’”[114] Although intended to overcome the bubonic plague, Haffkine Prophylactic allegedly caused substantial harm in the San Francisco districts.[115] Wong Wai, a Chinese resident, quickly filed a lawsuit seeking an injunction against the San Francisco Board of Health and Dr. J. J. Kinyoun, “the acting quarantine officer of the United States government for the port of San Francisco.”[116]
In Wong Wai v. Williamson (hereinafter Wong Wai I), Wong Wai asserted that Haffkine Prophylactic was “a poisonous substance, made and compounded from living bacteria of the bubonic plague.”[117] Wong Wai further alleged that the vaccine “produces a severe reaction, and causes great [pain] and distress generally, a sudden and great rise of temperature, and great depression, which sometimes continues, increasing in severity, until it causes death.”[118] The San Francisco Board of Health’s intent did not persuade the Circuit Court of the Northern District of California, which issued an injunction ending the mandatory Haffkine Prophylactic vaccines on May 28, 1900.[119] Despite the injunction, the San Francisco Board of Health pressed forward to vaccinate Chinese residents.[120]
B. Continued Targeting of Chinese for Vaccinations
In response to the court’s injunction, issued on May 28, 1900, and the “nine deaths due to bubonic plague,” the San Francisco Board of Health quickly adopted a resolution “request[ing] the board of supervisors to declare said district infected, and authorize the board of health to quarantine said district.”[121] The Board of Supervisors granted the Board of Health’s request and adopted an ordinance allowing the Board of Health “to quarantine persons, houses, places, and districts within this city and county, when in its judgment it is deemed necessary to prevent the spreading of contagious or infectious diseases.”[122] After the mayor of San Francisco approved the ordinance, the Board of Health adopted another resolution:
[T]his board has reason to believe and does believe that danger does exist to the health of the citizens of the city and county of San Francisco by reason of the existence of germs of the said disease remaining in the district hereafter mentioned[.] Now, therefore, be it resolved: That the health officer be and is hereby instructed to place in quarantine until further notice that particular district of the city bounded [by various streets]; and that the chief of police is hereby requested to furnish such assistance as may be necessary to establish and maintain said quarantine. These lines may be modified by the health officer, or the chief of police, health board to be notified of the same. This resolution to take effect immediately.[275]
Subsequent to the orders passed, the Board of Supervisors issued a final ordinance on May 31, 1900.[123] Primarily, the Board of Supervisors used the ordinance to outline quarantine restrictions within the infected district.[124] Additionally, the ordinance granted the chief of police even greater power to enforce the quarantine.[125]
Though the orders did not explicitly identify Chinese individuals as was attempted in Wong Wai I,[126] the court in Jew Ho v. Williamson nonetheless found that “[t]he evidence here is clear that this is made to operate against the Chinese population only, and the reason given for it is that the Chinese may communicate the disease from one to the other.”[127] On June 15, 1900, the Circuit Court of the Northern District of California issued an injunction based on the ordinances being “unreasonable, unjust, and oppressive, and therefore contrary to the laws limiting the police powers of the state and municipality in such matters.”[128] Further, the court found that the ordinance was “discriminating in its character, and … contrary to the provisions of the fourteenth amendment of the constitution of the United States.”[129] The San Francisco Board of Health, similar to its response after the injunction in Wong Wai I, decided to work around the court’s injunction.[130]
C. Dr. Kinyoun’s Last Stand
The day prior to the Northern District of California decision in Jew Ho, Quarantine Officer Dr. Kinyoun telegraphed his superior plans to maintain a quarantine in the event that the courts blocked the vaccination program.[131] Dr. Kinyoun planned to “enforce regulations of May 21 against all persons leaving San Francisco for other states[] [and] instruct common carriers to refuse transportation [to] all persons desiring to leave San Francisco to other states. …”[132] Additionally, Dr. Kinyoun sought to protect state lines while notifying the surrounding state boards about the “actual conditions” in San Francisco.[133]
The very day that the Northern District decided Jew Ho, members of San Francisco’s Board of Health consciously continued their crusade to quarantine Chinese districts.[134] Dr. Kinyoun sent a letter to numerous cities stating:
Federal court dissolves quarantine imposed by local board of health on Chinese district on account of eleven deaths from plague occurring from March seventh until June second. Would suggest precautionary measures be instituted against all persons coming from the infected district. Have notified common carriers under law 1890 refuse transportation all persons leaving San Francisco for other states unless provided with certificate signed by marine hospital officer.[276]
Hoping to show cause for contempt, Chinese plaintiffs filed a new case in the Circuit Court of the Northern District of California.[135] Unfortunately for the plaintiffs, the court found that the regulations Dr. Kinyoun hoped to attach under the 1890 law were appropriately tailored and different from the regulations previously passed.[136] Even though the plaintiffs wanted the court to review whether the President authorized the regulations, the court did not note any evidence and found that Dr. Kinyoun did not violate the previous injunction.[137] The court spared punishing Dr. Kinyoun; the subsequent backlash was fierce from state officials in California.[138] Although the San Francisco attempts were ultimately unsuccessful as vaccination programs,[139] the Supreme Court allowed the first mass vaccination program in 1905.[140]
IV. POST–WONG WAI: MANDATORY VACCINATIONS, SUBSTANTIVE DUE PROCESS, AND EQUAL PROTECTION
Ultimately, the federal courts have not invalidated a vaccination program since 1900.[36] This, however, has not stopped opponents of mandatory vaccination from asserting constitutional liberties in court.[37] In opposition to the hypothetical vaccination program targeting melanin groups, plaintiffs would likely assert due process and equal protection claims.[38]
A. The Beginning of Mandatory Vaccinations in the United States and a Hypothetical Program Ta…
In Jacobson v. Massachusetts, the Supreme Court “rejected the claim that the individual liberty guaranteed by the Constitution overcame the State’s judgment that mandatory vaccination was in the interest of the population as a whole.”[141] Shortly after affirming the vaccination program in Jacobson, the Court in Zucht v. King upheld legislators mandating vaccines for children to attend school starting in 1922.[142] Following the Supreme Court’s decisions in both Jacobson and Zucht, every state now has some form of mandatory vaccination program to attend school.[143] Even though the federal courts have not invalidated a vaccination program since 1900, legislators and health board administrators similarly have not targeted race in a compulsory vaccine program since the bubonic plague.[144]
Despite the failed Chinese vaccination program of 1900, legislators could attempt to vaccinate melanin groups from specific harms.[145] In addition to ensuring procedural due process,[146] a potential vaccination program would outline the melanin group and condition targeted for vaccination.[147] Further, the program would mandate vaccinations for all individuals of the melanin group,[148] assert relevant scientific research to support the claim,[149] and ensure compliance through either criminal or civil penalties.[150] Using this strategy for the program framework, court review of due process and equal protection claims would likely permit a mandatory vaccination program targeting individuals of a particular melanin content.[151]
B. Judicial Review of Substantive Due Process and Equal Protection
The Supreme Court’s application of both substantive due process and equal protection has changed dramatically through the years.[152] In fact, the Court in Bolling v. Sharpe highlighted that the two concepts are not “always interchangeable phrases.”[153] The Supreme Court went further to note “discrimination may be so unjustifiable as to be violative of due process.”[154]
If a governmental body determines that a new compulsory program requires individuals of a particular melanin content for vaccination, then both substantive due process and equal protection claims might appear in courts. For a substantive due process claim under both the Fifth and Fourteenth Amendments, the level of judicial scrutiny used during review relates to the right or liberty at stake.[155] For an equal protection claim, the Court first reviews whether a government actor targets, or disparately impacts, a suspect group and then applies the appropriate standard of review.[156] As a vaccination program has never previously mandated vaccination of individuals with a particular melanin content, such a program would be a matter of first impression upon the courts with little guidance on how the Supreme Court might rule.[157]
Under the most stringent standard of strict scrutiny, government officials must demonstrate that they narrowly tailored a melanin-based vaccination program and that targeting the particular group fulfills a compelling state interest.[158] Additionally, the narrowly tailored prong requires the state to act in the least-restrictive manner.[159] The least-restrictive manner, at a minimum, requires legislation to “promot[e] a substantial government interest that would be achieved less effectively absent the regulation.”[160]
V. JUDICIAL REVIEW OF SUBSTANTIVE DUE PROCESS CLAIMS REGARDING A HYPOTHETICAL VACCINATION PRO…
Applying the proper test for a substantive due process claim first requires determining the status of the defendant.[39] The analysis is nearly identical between a Fifth and Fourteenth Amendment claim; however, there are a few caveats.[40] When courts review substantive due process claims associated with state agencies or laws, the Supreme Court will likely use the precedent outlined in Jacobson.[41] However, the Supreme Court has never expanded on the dicta in Jacobson suggesting that vaccination programs must consider the health and safety of any particular individual.[42] Although government officials know that vaccines can harm individuals, the Court has never articulated what level of harm is inappropriate.[43]
Additionally, if a federal entity enacted a mandatory program targeting normal citizens, that program would be a matter of first impression for the Court.[44] Although a matter of first impression, the Supreme Court would likely use United States v. Windsor as the starting point of the analysis with regard to federal regulations.[45] Additionally, the Court may invoke National Federation of Independent Business v. Sebelius if Congress enacted a statute mandating vaccination.[46] Finally, there is notable potential that a federal mandatory vaccination program would have a greater chance of success than a state program.
A. Evaluation of a Substantive Due Process Claim for Injunction Against a State Agency or Law
If a state agency, similar to the county health board of San Francisco in 1900, implemented a hypothetical vaccination program targeting melanin groups, a review of the substantive due process claim would occur under the Fourteenth Amendment.[161] As with the challenges in Wong Wai I, Jew Ho, Wong Wai II, Jacobson, Zucht, and Phillips, the common constitutional vehicle for fighting mandatory state vaccination programs is the Fourteenth Amendment.[162] Half of the cases previously listed found a violation of the Fourteenth Amendment, and half of the cases found the vaccination program to be appropriate.[163]
The significant difference between the two groups of cases is the demonstration of real facts inappropriately tailoring the group.[164] As suggested in the Court’s modern substantive due process analysis in Obergefell, a vaccination program similar to that of Dr. Kinyoun and the San Francisco Board of Health fails to respect constitutional rights.[165] In Obergefell, the Court articulated that individuals are free from inappropriate invasion by the government of fundamental rights and that the Court reviews attacks on fundamental rights under strict scrutiny.[166] Noting the historical importance and the fundamental right associated with marriage, the Court held that states could not deny same-sex couples the right to marry.[167]
Applying Obergefell to the San Francisco vaccination program of 1900, the vaccination program fails constitutional muster. For example, the court in Jew Ho indicated that the findings of Dr. Kinyoun were not compelling.[168] The opinion of the District Court of Northern California in Jew Ho insinuated that Dr. Kinyoun’s claims about the bubonic plague in the quarantined area were false; however, the court noted the finding as outside the scope of the court proceedings.[169] If the Jew Ho court found that the San Francisco Board of Health lied or acted inappropriately, then the false information to quarantine individuals, based on race, would indicate a noncompelling interest on behalf of state officials, whether the court explicitly or implicitly expresses the concern.[170]
Applying the standards it has set forth, the Supreme Court should allow a hypothetical vaccination program targeting melanin groups.[171] Because the courts review modern vaccination programs under strict scrutiny, a melanin-based program would undoubtedly receive similar treatment.[172] The first prong of strict scrutiny requires review of whether government actors narrowly tailored legislation.[173] Following the outcome of the legal challenges to the 1900 San Francisco health policy, courts today should strike down a vaccination program that government actors do not narrowly tailor.[174]
Unlike the San Francisco health policy, government officials could appropriately tailor a vaccination program targeting melanin groups.[175] Classifying the necessary melanin content to a nanograms range would be an exceptionally narrow tailoring.[176] Additionally, science and research indicate that particular melanin deficiencies can cause particular harms.[177] A vaccine able to prevent any of these harms would be helpful in sustaining a healthy society and “promot[e] a substantial government interest that would be achieved less effectively absent the regulation.”[178]
If government officials narrowly tailored legislation, the second prong of strict scrutiny requires reviewing whether the legislation meets a compelling government interest.[179] The Court in Jacobson dealt directly with the state interest in eradicating the communicable disease of Smallpox.[180] Similarly, the Court in Wong Wai I, Wong Wai II, and Jew Ho considered the interest of the government in stopping the epidemic of the bubonic plague.[181] In Jew Ho, the Court indicated several reasons why the Board of Health’s mandate was not compelling.[182]
Unlike the potential to disbelieve the cause of the bubonic plague during 1900, melanoma has a well-recorded history.[183] Additionally, a clear level of violation is not existent in a hypothetical melanin-based program compared to ethnic-based vaccinations.[184] Furthermore, there have been far too many articles and books published for a sitting justice to doubt the serious risk of melanoma.[185] Further, doctors and scientists indicate that cancer is potentially transmittable among individuals or animals.[186] As long as a hypothetical vaccination program targeting melanin does not rely on false science, then a court should allow the program to continue even under strict scrutiny review.[187]
Unlike the cases mentioned above, a hypothetical vaccination program focusing on melanoma and targeting melanin groups could be supported by a compelling interest.[188] Melanoma is aggressive and has the potential for transmission between individuals.[189] Ensuring that melanoma does not affect other individuals is a substantial interest similar to Jacobson.[190] Even if courts refused to find cancer transmission a possible risk, the court could still find the interest compelling.[191]
Not all modern vaccine programs target human-to-human transmission.[192] For example, tetanus is widely accepted as a noncommunicable disease.[193] Nonetheless, tetanus vaccinations are required in almost all mandatory vaccination programs in the United States, because it is a compelling government interest to protect citizens from medical harms.[194]
The evidence currently available across the world that highlights melanin-related concerns surmounts the scientific support provided by Dr. Kinyoun to the District Court of Northern California.[195] A state actor could demonstrate a justifiable government interest in protecting against melanoma or some other melanin-based issue by targeting and vaccinating particular melanin-groups.[196] Although analysis of a substantive due process claim is fundamentally similar between the Fifth and Fourteenth Amendments, there are a few notable distinctions.
B. Evaluation of a Substantive Due Process Claim Regarding Federal Legislation or Agency Regu…
If federal legislation or regulation created the hypothetical vaccination program, the reviewing court would similarly apply strict scrutiny, because the legislation infringes upon a fundamental liberty.[197] Though the federal strict scrutiny analysis would be very similar to the state analysis outlined above, there are two distinctions to consider. First, how might the federal government enact a program historically reserved to the police powers of the states? Second, do state officials typically receive the same deference as federal actions?
i. Developing a Federal Vaccination Program for Citizens
The Supreme Court has previously labeled the authority to mandate vaccination programs as a matter of the police power of the states.[254] The Court found a similar police power in state laws involuntarily committing individuals with an infectious disease and creating indefinite detention for sexual offenders.[255] In United States v. Comstock, the Court determined that the Necessary and Proper Clause was an appropriate vehicle for Congress to enact the Adam Walsh Child Protection and Safety Act, which created indefinite detention for federal inmates convicted of certain sex offenses.[256] The Court articulated that legislators narrowly tailored the statute and that the law did not confer upon the federal government general police powers because Congress historically regulated federal inmate mental health.[257] Under Comstock, Congress has broad authority to develop laws necessary for properly enforcing the powers of Congress.[258]
A court reviewing a melanin vaccination program developed by Congress should similarly find that Congress is not giving the federal government general police powers.[259] Primarily, the area of public health is already within the realm of Congressional oversight for numerous matters.[260] For example, Congress already regulates vaccinations as related to immigration to protect the American public from diseases.[261] Additionally, the Supreme Court expanded congressional reach in Sebelius by allowing the individual mandate of the Affordable Care Act.[262] If Congress can directly motivate individuals to buy insurance to ensure the health and safety of the public, Congress should have the authority to directly engage individuals to vaccinate against melanoma.[263] Similarly, if the Court allows Congress to mandate a melanin vaccination program, the courts are likely to give more deference to Congress and federal programs compared to traditional state and local public health programs.
ii. Judicial Scrutiny of Similar State and Federal Actions
Although the analysis of substantive due process is similar with respect to Fifth and Fourteenth Amendment claims, the Court often grants greater deference to federal officials than state officials. For example, the Court in Stenberg v. Carhart found Nebraska’s ban on late-term abortion unconstitutional.[264] Alternatively, the Court in Gonzales v. Carhart found Congress’s ban on late-term abortions constitutional.[265] Notably, Congress did specifically tailor its legislation around the Court’s issues articulated in Stenberg.[266] Additionally, the Court has previously held that fact-finding, as it relates to congressional legislation, is solely within the realm of the Legislative Branch.[267]
Even when the Court tries to hold federal officials to the same standard as state officials, federal officials find ways to tailor federal actions to avoid previous judicial concerns. For example, the Eighth Amendment restricts state officials, as incorporated by the Fourteenth Amendment via the Court’s holding, from incarcerating individuals statutorily labeled as addicts.[268] The Court found that the action amounted to cruel and unusual punishment.[269] Similarly, the Supreme Court in Hamdi v. Rumsfeld started requiring that military officials allow American citizens the opportunity to contest enemy combatant status to an impartial tribunal when captured in enemy territory.[270] In a likely response to the Supreme Court’s Eighth Amendment and Hamdi restrictions, the federal government changed the procedure from capturing citizens labeled as combatants to killing citizens labeled as combatants.[271] Though the Supreme Court may have ruled differently than the District Court in Al-Aulagi v. Panetta,[272] the totality of the case law indicates that the federal government is more likely to convince the courts that targeting particular melanin groups for melanoma vaccinations is appropriate under the Substantive Due Process Clause. Although a hypothetical vaccination program would prevail against a substantive due process challenge as previously explained, review of equal protection claims is still necessary.[273]
VI. TARGETING MELANIN GROUPS AND EQUAL PROTECTION CLAIMS
In addition to substantive due process claims, a vaccination program targeting melanin groups might face equal protection challenges. If the courts found that government officials targeted a suspect group, judicial review of a melanin vaccination program would fall under either of the heightened standards of intermediate scrutiny or strict scrutiny.[47] If a reviewing court found targeting melanin content comparable to targeting race, strict scrutiny review would apply.[48]
Even though targeting melanin content through legislation is a new concept, the Supreme Court has indicated great distrust of racial classifications.[49] The Court has historically applied strict scrutiny during judicial review of government laws and actions that potentially target racial groups.[50] However, a program targeting melanin would still pass judicial review if the government narrowly tailors the action to a compelling interest.[51] Additionally, the Court may supplement any equal protection analysis with Korematsu v. United States if military orders are at issue.[52]
A. Equal Protection Standards
Although Johnson involved race in the context of prisoners, the Supreme Court outlined that it “appl[ies] strict scrutiny to all racial classifications to ‘smoke out’ illegitimate uses of race by assuring that [government actors pursue] a goal important enough to warrant use of a highly suspect tool.”[198] Further, the Court noted that neutral application would not defeat strict scrutiny.[199] Additionally, in Parents Involved, the Supreme Court listed two ways the government can demonstrate a compelling interest in the school context for equal protection claims.[200] The Court recognized both an interest in “diversity in higher education” and in “remedying the effects of past intentional discrimination. …”[201] The Supreme Court ultimately found that the school district failed to meet either requirement when using racial classification for assigning students to schools or transferring students between schools.[202]
Though state officials in Johnson and Parents Involved did not prevail under strict scrutiny review, the burden on government officials is not impossible to meet.[203] Government officials successfully demonstrated both a compelling interest and a narrowly tailored action in Fisher v. University of Texas at Austin.[204] Although the state failed to pass strict scrutiny in Parents Involved, the Fisher Court demonstrated that government officials could successfully meet strict scrutiny under slightly different facts.[205] Under the strict scrutiny standard, the hypothetical vaccination program would succeed.[206]
B. Vaccinating Melanin Groups: A Compelling Interest
The Supreme Court in Parents Involved outlined two ways in which government officials may demonstrate a compelling interest involving race and schools.[207] Even though targeting melanin for vaccinations will not bring diversity to higher education, melanin vaccinations could “remedy[] the effects of past intentional discrimination.”[208] If the purpose of reading melanin content for mandatory vaccination is to assist particular melanin groups by fixing “the effects of past intentional discrimination,”[209] strict scrutiny review should find a compelling government interest.[210]
As previously stated, research has provided sufficient evidence that individuals with albinism have, in fact, a greater chance to develop skin cancer.[211] In addition to a greater risk of skin cancer,[212] albinism has been the target of some of the most abhorrent forms of discrimination across the world.[213] Various individuals have viciously targeted, maimed, and brutalized persons with albinism for their bones.[214] From targeted physical brutalization in Africa[215] to denigration in pop culture in the United States, society’s discriminatory response to albinism creates a risk of harm for many.[216]
In addition to the intentional discrimination against individuals with albinism,[217] the United States has a long history of intentional discrimination related to darker pigmentation.[218] Mandatory vaccination programs for genetic health issues, health issues that have developed over time through both intentional discrimination within the health care system[219] and genetic ancestry, should now strive to remedy past discrimination.[220] If a legislative body intends to remedy past discrimination, the Supreme Court should recognize the intent as a compelling government interest and then review whether government officials have narrowly tailored the legislation.[221]
C. Vaccinating Melanin Groups: Narrowly Tailored
Contrary to the assertions of the Northern District of California, unequal application may not necessarily defeat a vaccination program.[222] As demonstrated by Virginia Code Section 32.1–46(A)(12), explicitly targeting only female students for the HPV vaccine, modern vaccination programs already specify vaccination requirements based on groups by age and gender.[223] Additionally, the Court in Fisher articulated that considering race and ensuring a limited effect “should be a hallmark of narrow tailoring, not evidence of unconstitutionality.”[224]
The HPV vaccine program in Virginia has not been the subject of an effective equal protection challenge since it was adopted over 10 years ago, demonstrating that vaccination programs clearly do not need to involve all persons possible.[225] Though legislation targeting gender receives only intermediate scrutiny in equal protection cases,[226] HPV vaccination programs based on gender in Virginia and other jurisdictions indicate a willingness by legislators to limit vaccination by demographic group.[227] Targeting female students for HPV vaccinations, to protect women in society from the most common source of cervical cancer, demonstrates a narrowly tailored intent that furthers a substantial government interest that would be achieved less effectively absent state legislation.[228] Moreover, Fisher bolsters the ability for state legislatures and agencies to consider equality factors, such as race or gender, as long as the state officials continue to monitor progress and adjust accordingly.[229] Additionally, the Court supports the states operating “as ‘laboratories for experimentation.’”[230]
Spectrometer readings are merely computers that cannot identify an individual of Caucasian descent from an African descendant with albinism.[231] This may also be the case in social settings among members of the general society.[232] Because it is possible for individuals to become tanner or lose pigmentation through a variety of methods,[233] vaccination programs targeting melanin groups would be applied to all races and ethnicities rather than targeting any particular group.[234] Further, if a sudden spread of melanoma occurred in the United States and a program related to stopping the epidemic was implemented, the courts likely would give greater deference to the public health administration of the program.[235]
D. Constitutional Obligations of the Federal Government Under Equal Protection and Originalis…
Although the current Supreme Court might not find a difference between equal protection applied to the states and federal government, some legal philosophers reject modern equal protection restrictions placed on government officials.[236] For example, Justice Antonin Scalia, prior to his death, a major proponent of Originalism, fundamentally disagreed with how the Court applied the Fourteenth Amendment.[237] Additionally, Chief Justice Rehnquist, while still a law clerk, thought that a much lower standard of equal protection applied to the states, asserting, “I think Plessy v. Ferguson was right and should be re-affirmed.”[238] Finally, some scholars assert that the Equal Protection Clause should not apply to the federal government at all.[239]
If the Court adopted Originalism aligned with how Chief Justice Rehnquist understood Brown v. Board of Education, then a “separate but equal” standard would be the extent of protection under the Equal Protection Clause.[240] Further, under Mike Rappaport’s theory of the Equal Protection Clause, equal protection claims through the Fifth Amendment would cease to exist entirely.[241] However, the Court has, in more recent years, shifted away from Originalism in favor of a living Constitution, thus making it more likely that the Court would assert a more demanding standard of equal protection.[242] Only through swayed opinion[243] or Presidential selection[244] might the Court embrace some form of Originalism.
E. War and Military-Inspired Vaccination Programs
Though Originalism may never fully encapsulate the Court, emergency doctrines in health matters, such as biological or environmental warfare, have influenced the equal protection analysis. In Korematsu, the Supreme Court had to determine whether Japanese internment camps were an appropriate use of military power.[245] The Court found that the government action did not involve the broader concept of racial prejudice toward all Japanese individuals but rather to a narrower group that happened to involve a group solely composed of Japanese persons.[246]
The Korematsu Court found that only focusing on potential “racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue” and thus ultimately refused to find that officials excluded Korematsu based on “his race.”[247] The Court stated that Korematsu and other persons of Japanese heritage within the internment camps were not actually facing racial discrimination, because the “war with the Japanese Empire, … [and] the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily. …”[248] If insidious individuals committed a form of biological warfare that depleted melanin content,[249] military authorities should ensure the health and safety of those affected. Similarly, military authorities would have reason to mandate inoculation with melanoma vaccines among service members if environmental warfare focused on depleting ozone protection.[250] With a hypothetical vaccination program only targeting melanin groups necessary to stop a social disaster similar to war,[251] the courts could more easily find the program to be narrowly tailored.[252] If the military decided to only vaccinate the individuals whom they felt were most susceptible to melanoma and it involved those with pale skin or mostly Caucasians, then reviewing courts should find that focusing on “racial prejudice, without reference to the real military dangers [present], merely confuses the issue” and ultimately uphold the vaccination order.[253]
CONCLUSION
Ultimately, it is possible for melanin-focused vaccine programs to be compulsory without violating either the Due Process or Equal Protection Clauses of the United States Constitution. Absent the distraction of false science or premature medical research related to skin pigmentation,[53] legislators would not be constrained to merely vaccinating melanin groups for skin cancer related to albinism. For example, the Supreme Court could uphold government authorization for a melanin-based program targeting sickle cell disease or require individuals with darker pigmentation to receive screening to avoid the associated health risks.[54] Individuals of Mediterranean or sub-Saharan descent would potentially assert violations of the Fifth or Fourteenth Amendments with such a program.[55] The Court, nevertheless, should protect a public health program merely touching, and not targeting, a particular race or ethnicity if it is narrowly tailored and sufficiently medically supported to further the government’s interest. Further, Fisher highlights the Court’s willingness to consider that a government’s direct targeting of a particular race or ethnicity would not necessarily defeat a race-based program.[56]
Moreover, medical research indicates that different medicines are necessary for different groups of people, including those based on ethnicity.[57] For example, various heart medications already show various effective rates among different ethnic groups.[58] Thus, the courts should act favorably toward scientific evidence that indicates that a particular vaccine is beneficial for a specific melanin group. As a national identity of interstate interests and medical burdens grow in the United States,[59] state and federal government officials should consider, and implement, vaccination programs targeting melanin groups that seek to eradicate skin cancer, when laboratories are ready to distribute melanoma vaccines commercially.[60] If such a vaccination program were made mandatory, targeting individuals of a particular melanin group, the courts should find that they are constitutionally sound in the interests of public health.
By Kyle McAllister-Grum
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