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Op-Ed

HPV vaccine bill would be unconstitutional

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New York state law requires that children be inoculated against nearly a dozen highly contagious diseases, including smallpox, measles, meningitis and polio. Some state legislators now want to add the sexually transmitted disease human papillomavirus, or HPV, to that list.

These legislators assert that because HPV can lead to cervical cancer later in life, all children entering seventh grade must be immunized against it, regardless of their parents’ wishes.

An online petition opposing the bill has garnered more than 87,700 signatures over the past month, and the American College of Pediatricians has condemned such legislation.

But there’s another reason to reject this legislation: It runs afoul of the Constitution.

The U.S. Supreme Court has held that a state’s police power allows it, in certain circumstances, to compel vaccinations, including as a condition for school attendance. But parents’ right to make decisions about the care of their children — including what goes into their bodies — is one that the Supreme Court long ago deemed to be fundamental.

Whenever government conduct infringes on a fundamental right, it must pass “strict scrutiny,” the most exacting standard of review. Under this standard, the state must establish that the law is necessary to achieve a compelling government purpose, and that it interferes with protected rights no more than absolutely necessary. 

The proposed HPV vaccine legislation falls short on both counts. 

While reducing the number of cervical cancer deaths in New York is a legitimate and important public health goal, it doesn’t rank as a compelling state interest. According to the Centers for Disease Control and Prevention, cervical cancer was reported in only 0.008 percent of women in New York state in 2016, the most current year for which data is available, and that same year, just 0.002 percent — two thousands of one percent — of women in New York died from it. In other words, there’s no cervical cancer epidemic in the Empire State.

By comparison, during the decades in which the smallpox vaccine was made mandatory in schools, from the mid-19th to the early 20th century, the mortality rate from smallpox in New York City was 8,000 percent higher, as were the death rates from measles, whooping cough, diphtheria and meningitis.

Further, given that New York does not mandate sex education or HPV education in its schools, it cannot credibly argue that it has an overriding interest in reducing the number of HPV infections. And since the state has never required pap tests, it is doubtful that it would ever be able to prove a paramount interest in eradicating cervical cancer.

Even if driving down the number of cervical cancer deaths in New York were a compelling state interest, forcing young children to receive HPV vaccinations is unnecessary to achieve that goal. First, while infections from smallpox, measles, polio, tuberculosis and the like occur by inhalation of airborne contagions, HPV can only be transmitted through sexual intercourse. Moreover, it can take decades for an HPV infection to cause cervical cancer, if it ever does. Vaccinating against the virus is therefore not essential to contain an imminent public-health crisis. 

Second, because sexually transmitted diseases are preventable through lifestyle and behavioral choices that can be taught, injecting pathogens into children’s bodies is needless. Third, the HPV vaccine only protects against some strains of the virus. Thus, even with the vaccine, a woman could still contract a strain that can lead to cancer.

Nor is compulsory HPV vaccination a narrowly tailored means of reducing the overall incidence of cervical cancer. Making the vaccine mandatory for elementary-school students would not necessarily mean that fewer adult women would die of cervical cancer in New York. We don’t know what percentage of schoolchildren who received the vaccine would remain in New York, nor do we know how many women would move here not having received the vaccine.

Most of the time, HPV goes away on its own, without causing health problems. Only a small percentage of women whose bodies cannot clear the virus — estimated at about 10 percent — are at risk of developing cervical cancer, and only a fraction of them ever do. 

Similarly, the contraction of HPV can be prevented through sexual education, use of condoms and premarital abstinence. Regular pap tests are successful at detecting cell changes on the cervix that might become cervical cancer. All of these are effective options that impose no restrictions on parents’ constitutional right to make decisions about the care of their children.

To be sure, the HPV vaccine appears to be effective in preventing many strains of the virus that can lead to cervical cancer, and it may very well be advisable to have it. But that’s not the point. The decision whether to administer this vaccine to a child, regardless of its efficacy, should be made by the child’s parents, not the government.

Ameer Benno is a constitutional law attorney and a former Republican congressional candidate in the 4th District. Follow him on Twitter at @ameerbenno. Comments about this column? Abenno@ameerbenno.com.