1 Alicia Chang, Large Measles Outbreak Traced to Disneyland Is Declared Over, Press Telegram (Apr. 21, 2015), http://www.presstelegram.com/article/20150421/NEWS/150418075 [https://perma.cc/NU6K-H5VT].

2 Id. Measles begins with a fever that lasts for a couple of days, followed by a cough, runny nose, conjunctivitis (pink eye), and a rash. Measles, Cal. Dep’t. Pub. Health https://www.cdph.ca.gov/HEALTHINFO/DISCOND/Pages/Measles.aspx [https://perma.cc/U2A6-9P75]; Complications of a measles infection can include ear infection, diarrhea, pneumonia, brain damage, and death. Measles, Mumps, and Rubella (MMR) Vaccine Safety, Ctrs. for Disease Control & Prev., http://www.cdc.gov/vaccinesafety/vaccines/mmr-vaccine.html [https://perma.cc/YS8V-3QCQ].

3 Chang, supra note 1. Nearly 160 additional people were infected in Quebec, when a traveler returned from Disneyland carrying the virus, which spread to community members. Id.

4 Id.

5 Chang, supra note 1; Measles, World Health Org., http://www.who.int/mediacentre/factsheets/fs286/en/ [https://perma.cc/6SMJ-XRE5]; State by State: Vaccinations Required for Public School Kindergarten, ProCon.org, http://vaccines.procon.org/view.resource.php?resourceID=005979 [https://perma.cc/GV8R-QYH5].

6 Mello, Michelle M., Studdart, David M. & Parmet, Wendy E., Shifting Vaccination Politics – The End of Personal-Belief Exemptions in California, 379 N. Engl. J. Med. 785, 785 (2015)CrossRefGoogle Scholar.

7 Partially in response to the Disneyland outbreak, California enacted a law revoking all exemptions (except for medical reasons) to vaccine mandates for public or private school attendance. See S.B. 277, 2015–16 Leg., Reg. Sess. (Cal. 2015), ch. 35, 2015 Cal. Stat. 91. For an excellent history on the development of and controversy surrounding vaccines, see Arthur Allen, Vaccine: The Controversial Story of Medicine’s Greatest Lifesaver (2007).

8 Jacobson v. Massachusetts, 197 U.S. 11 (1905).

9 The author uses the term “anti-intoxicant vaccine” because the intervention works by eliciting an immune response to prevent certain chemicals from reaching the brain, thus suppressing potential intoxicating effects rather than solely preventing a person from becoming addicted; therefore, anti-intoxicant vaccine is a more accurate term than “addiction vaccine,” a commonly used descriptor. See infra Part III.B for an explanation of the mechanics of these vaccines.

10 See, e.g., Elisabeth Fischer, Curing Addiction: Vaccines to End Drug Abuse, Pharmaceutical-technology.com (Apr. 24, 2012), http://www.pharmaceutical-technology.com/features/featuredrug-addiction-medication-vaccine-drug-abuse/ [https://perma.cc/DY4V-PEGN]; Douglas Quenqua, An Addiction Vaccine, Tantalizingly Close, NY Times (Oct. 3, 2011), http://www.nytimes.com/2011/10/04/health/04vaccine.html?ref=science&_r=0.

11 See Alexis Osburn, Immunizing Against Addiction: The Argument for Incorporating Emerging Anti-Addiction Vaccines into Existing Compulsory Immunization Statutes, 56 Clev. St. L. Rev. 159, 165 (2008); Alexandra Ossola, A Vaccine that Makes Your Body Destroy Opioids, Popular Sci. (Feb. 17, 2016), http://www.popsci.com/there-could-soon-be-vaccine-for-opioid-overdose [https://perma.cc/WF9X-4GRB].

12 See Osburn, supra note 11, at 165.

13 See id at 174-88. Cf. Ron Zimmerman, Vaccines for Addiction Gaining Momentum, Medscape (Oct. 17, 2011) (“[R]esearchers hope that addiction vaccines may reverse [the rising cost trends related to addiction], not only by treating addicts but also by immunizing young people before they become addicted.”). In the United Kingdom, an expert group of scientists proposed universal anti-intoxicant vaccination for consideration of policymakers. Sophie Goodchild & Steve Bloomfield, Children to Get Jabs Against Drug Addiction: Ministers Consider Vaccination Scheme in Heroin, Cocaine and Nicotine, Indep. (July 25, 2004), http://www.independent.co.uk/news/uk/crime/children-to-get-jabs-against-drug-addiction-5356435.html [https://perma.cc/75H7-UR4E].

14 See Am. Soc. of Addiction Med., Opioid Addiction: 2016 Facts and Figures 1–2 (2016) (explaining opioids were involved in nearly 30,000 accidental overdose deaths in 2015); Katherine Seelye, Heroin Epidemic Increasingly Seeps into Public View, N.Y. Times, Mar. 7, 2016, at A1 (describing how opioid addiction is becoming more prevalent in white, suburban communities).

15 This article focuses on a substantive due process challenge under the Federal Constitution. There may be additional arguments that anti-intoxicant vaccines would be unconstitutional under state law. Cf. Allan Jacobs, Needles and Notebooks: The Limits of Requiring Immunization for School Attendance, 33 Hamline L. Rev. 171, 191–92 (2010); Dorit Rubinstein Reiss, Vaccines, School Mandates, and California’s Right to Education, 63 UCLA L. R ev. Disc. 98 (2015). Opponents of California’s recently enacted law removing the personal exemption to vaccinations filed suit arguing the law violates the State constitutional right to education, among other claims. Soumya Karlamangla, Opponents Sue to Stop California’s Vaccination Law, L.A. Times (July 5, 2016), http://www.latimes.com/local/lanow/la-me-ln-vaccination-lawsuit-20160705-snap-story.html [https://perma.cc/H243-8FLX]. Their motion for preliminary injunction was denied. Whitlow v. California, 203 F.Supp.3d 1079, 1092 (S.D. Cal. 2016).

16 See Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

17 See The Science of Drug Abuse and Addiction: The Basics, Nat’l Inst. on Drug Abuse, https://www.drugabuse.gov/publications/media-guide/science-drug-abuse-addiction-basics [https://perma.cc/VR9G-JDSG].

18 See Ossola, supra note 11.

19 See infra Part IV.

20 These factors are discussed infra, Part IV.A.

21 This article only focuses on a universal anti-intoxicant vaccine mandate. Mandates for more targeted populations, such as justice-involved people (either incarcerated or on criminal justice supervision), require further consideration, and are not addressed here due to length constraints. For some examination of these issues, see Boire, Richard Glen, Neurocops: The Politics of Prohibition and the Future of Enforcing Social Policy from Inside the Body, 19 J. L. & Health 215 (2006)Google Scholar; Ridgely, M. Susan & Iguchi, Martin Y., Coercive Use of Vaccines Against Drug Addiction: Is It Permissible and Is It Good Public Policy?, 12 Va. J. Soc. Pol’y & L. 260 (2004)Google Scholar; M. Susan Ridgely, Martin Y. Iguchi & James R. Chiesa, The Use of Immunotherapies and Sustained-Release Formulations in the Treatment of Drug Addiction: Will Current Law Support Coercion?, in New Treatments for Addiction: Behavioral, Ethical, Legal, and Social Questions 173, 178–81 (Henrick J. Harwood & Tracy G. Myers eds., 2004). In order to directly address the substantive due process issues associated with a universal anti-intoxicant mandate, this article proceeds under the assumption that both the parent(s)/legal guardian(s) and minor would object to anti-intoxicant vaccine administration, thus the rights of a minor to refuse vaccination without permission of his parent(s)/legal guardian(s) are not discussed. For some discussion of these rights, see Ridgely & Iguchi, supra, at 289–92; Ridgely, Iguchi & Chiesa, supra, at 176–77. The author of this article hopes to address these issues in the future.

This article is also restricted to addressing the constitutionality of a universal mandate and does not address the various ethical and practical concerns associated with such a mandate (of which there are many). See, e.g., Hall, Wayne & Carter, Lucy, Ethical Issues in Using a Cocaine Vaccine to Treat and Prevent Cocaine Abuse and Dependence, 30 J. Med. Ethics 337 (2004)CrossRefGoogle ScholarPubMed. The author of this article also hopes to address these concerns in the future.

22 Like for addiction, the definition of “disease” is unsettled and is highly context-dependent. Scully, Jackie Leach, What Is a Disease?, 5 Eur. Molecular Bio. Org. Rep. 650, 650 (2004)Google ScholarPubMed. For the purposes of this article, disease is defined as an abnormal condition caused by a known genesis or geneses that, after exposure, results in well-defined and predictable symptoms without attribution to the actions of the afflicted person. An invulnerable definition of disease (something even the medical profession has difficulty agreeing on) is not as important as the treatment of an issue once it is defined as disease (e.g., attempts to address the issue through medical interventions, including vaccines, even if the genesis of the disease remains unknown).

23 Pew Res. Ctr., America’s New Drug Policy Landscape 6 (2014).

24 The Nat’l Ctr. on Addiction & Substance Abuse Colum. U., Addiction Medicine: Closing the Gap between Science and Practice 1 (2012).

25 Gene M. Heyman, Quitting Drugs: Quantitative and Qualitative Features, 9 Ann. Rev. of Clinical Psychol. 29, 42 (2013); Maia Szalavitz, Most People with Addiction Simply Grow Out of It: Why Is This Widely Denied?, Substance.com (Jan. 18, 2015), http://www.substance.com/most-people-with-addiction-simply-grow-out-of-it-why-is-this-widely-denied/13017/; National Study Reveals: Teen Substance Use America’s #1 Public Health Problem, The Nat’l Ctr. on Addiction & Substance Abuse Colum. U. (June 29, 2011), https://www.centeronaddiction.org/newsroom/press-releases/national-study-reveals-teen-substance-use-america%E2%80%99s-1-public-health-problem#.WQKzjFPytE4 [https://perma.cc/V43MSQKS] [hereinafter National Study Reveals].

26 Trends & Statistics, Nat’l Inst. on Drug Abuse (Apr. 2017), https://www.drugabuse.gov/related-topics/trends-statistics [https://perma.cc/3939-EBZY]. Costs related to tobacco are the highest, followed by alcohol and illicit drugs, at $295 billion, $224 billion and $193 billion annually, respectively. Id. It should be noted, however, that much of the criminal justice costs associated with illicit drug use are due to their illegality and the expenses of processing people through court and incarceration. U.S. Dep’t of Justice, Nat’l Drug Intelligence Ctr., The Economic Impact of Illicit Drug Use on American Society 37 (2011), https://www.justice.gov/archive/ndic/pubs44/44731/44731p.pdf.

27 Behavioral Health Treatments and Services, Substance Abuse & Mental Health Servs Admin. http://www.samhsa.gov/treatment [https://perma.cc/54WK-W5HJ] (noting only 2.5 million people accessed treatment out of the 21.2 considered in need).

28 Kathryn J. Fox, Ideological Implications of Addiction Theories and Treatment, in Expanding Addiction: Critical Essays 159, 159 (Robert Granfield & Craig Reinarman eds., 2015) [hereinafter Expanding Addiction]; see Rebecca Tiger, Judging Addicts: Drug Courts and Coercion in the Justice System 84 (2013) (noting addiction treatment is mostly modeled on the Alcoholics Anonymous/12 Steps approach, which is based on the disease model).

29 Fox, supra note 28.

30 Harry G. Levine, Discovering Addiction: Enduring Conceptions of Habitual Drunkenness in America, in Expanding Addiction, supra note 28, at 25, 29; see Benjamin Rush, An Inquiry into the Effects of Ardent Spirits upon the Human Body and Mind, in Drugs in America: A Documentary History 27, 29 (David Musto ed., 2002). Dr. Benjamin Rush attended the Second Continental Congress on behalf of the State of Pennsylvania and signed the Declaration of Independence. Penn Biographies: Benjamin Rush (1746–1813), U. Pa. Archives & Recs. Ctr., http://www.archives.upenn.edu/people/1700s/rush_benj.html [https://perma.cc/S2TT-MHHN]. He is also regarded as the “father of American psychiatry.” Id.

31 Levine, supra note 30, at 29–30. Currently, alcoholism is viewed in a similar manner as addiction to other drugs, and in fact, is referred to as “alcohol use disorder” under the category of “substance use disorders” in the most recent version of the Am. Psychol. Ass’n, Diagnostic & Stat. Manual Mental Disorders, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013). Although older writings separated alcoholism and other addictions, most now regard these under the same umbrella, though addiction to each substance is still considered a unique condition. See id. Thus, although this article references alcoholism, this term is interchangeable with addiction, specifically, to alcohol.

32 Levine, supra note 30, at 30.

33 Id. at 25.

34 Id. at 30–34.

35 Id. at 35. Alcoholics Anonymous, known as AA, is an international support group facilitated and attended by self-identified alcoholics whose primary purpose is to stay sober and assist others achieve sobriety. What is A.A.?, Alcoholics Anonymous Austl., http://www.aa.org.au/new-to-aa/what-is-aa.php [https://perma.cc/SJ2B-CTCB].

36 Levine, supra note 30, at 35. However, remnants of the theory that addiction is caused by the drug itself remain on prominent display today. See Michael C. Miller, Addiction: How to Break the Chain, in Chemical Dependency 72 (R. Espejo ed., 2011).

37 Levine, supra note 30, at 38, n.5; E.M. Jellinek, The Disease Concept of Alcoholism, in Drugs in America: A Documentary History 164, 164 (David Musto ed., 2002).

38 Jellinek, supra note 37, at 168–69. It is clear that repeated drug use can result in physiological changes to brain chemistry. See, e.g., Drugs, Brains, & Behavior: The Science of Addiction, Nat’l Inst. On Drug Abuse, https://www.drugabuse.gov/publications/drugs-brains-behavior-science-addiction/drugs-brain [https://perma.cc/5T6M-CFZP]. However, many modern addiction experts argue these changes are the result of new learned behavior, similar to how the brain responds to other stimuli, and not necessarily attributable to the drug itself. See Marc Lewis, The Biology of Desire: Why Addiction is Not a Disease 25, 31–33, 55–60 (2015).

39 Overviews of Models of Addiction, ELearn Portal, http://www.elearnportal.com/courses/psychology/psychology-of-addictions/psychology-of-addictions-overview-of-models-of-addiction-continued [https://perma.cc/85H7-B4DP].

40 Eagleman, David M., Correro, Mark A. & Singh, Jyotpal, Why Neuroscience Matters for Rational Drug Policy, 11 Minn. J.L. Sci. & Tech. 7, 10 (2010)Google Scholar.

41 Ridgely & Iguchi, supra note 21, at 264, n.12. Other organizations accepting the disease model of addiction include the White House Office on National Drug Control Policy, American Public Health Association, and American Bar Association. See A Drug Policy for the 21 ^st Century, The White House, https://obamawhitehouse.archives.gov/ondcp/drugpolicyreform [https://perma.cc/XM5A-TJNR] (describing the Office on National Drug Control Policy’s position that addiction is a disease); Drug Abuse & Dependence, Am. B. Ass’n, http://www.americanbar.org/groups/lawyer_assistance/resources/drug_abuse_dependence.html [https://perma.cc/BT7B-HUDS]; Prevention and Intervention Strategies to Decrease Misuse of Prescription Pain Medication, Am. Pub. Health Ass’n, http://www.apha.org/policies-and-advocacy/public-health-policy-statements/policy-database/2015/12/08/15/11/prevention-and-intervention-strategies-to-decrease-misuse-of-prescription-pain-medication [https://perma.cc/5HDE-SCGK].

42 Nat’l Inst. on Drug Abuse, supra note 17.

43 Craig Reinarman & Robert Granfield, Addiction Is Not Just a Brain Disease: Critical Studies of Addiction, in Expanding Addiction, supra note 28, at 1, 6; Lewis, supra note 38, at 17–18.

44 See Volkow, Nora D. & Li, Ting-Kai, Drug Addiction: The Neurobiology of Behaviour Gone Awry, 5 Nature Revs. Neurosci. 963, 963 (2004)CrossRefGoogle ScholarPubMed. A great summary of the neuroscience of substance use and addiction can be found in Eagleman, Correro & Singh, supra note 40, at 16–17.

45 Miller, supra note 36.

46 See Nat’l Inst. on Drug Abuse, supra note 17.

47 See Boire supra note 21, at 230. In fact, the government has called drug abuse an “insidious cancer.” Off. of Nat’l Drug Control Pol’y, Nat’l Drug Control Strategy, 1997 3 (1997).

48 Off. of Nat’l Drug Control Pol’y, National Drug Control Strategy, 2003 17 (2003), https://www.state.gov/documents/organization/17757.pdf.

49 Id.

50 Steven B. Karch, A Brief History of Cocaine ch. 16 1, 1 (2006); Robert J. MacCoun, Anticipating Unintended Consequences of Vaccine-Like Immunotherapies and Depot Medications for Addictive Drug Use, in New Treatments for Addiction: Behavioral, Ethical, Legal, and Social Questions 241, 265 (Henrick J. Harwood & Tracy G. Myers eds., 2004).

51 See Hrishikesh Belani et al., Integrated Prevention Services for HIV Infection, Viral Hepatitis, Sexually Transmitted Diseases, and Tuberculosis for Persons Who Use Drugs Illicitly: Summary Guidance from CDC and the U.S. Department of Health and Human Services, 61 Morbidity & Mortality Weekly Rep. 1, 2 (2012).

52 Id.

53 See Hall & Carter, supra note 21, at 339.

54 See id.

55 See Reinarman & Granfield, supra note 43, at 11. The fifth and most recent version of the Diagnostic and Statistical Manual of Mental Disorders, a standard classification published by the American Psychiatric Association and used by mental health professionals to diagnose disorders, includes definitions for “substance-related and addictive disorders,” which includes gambling. Id. at 5. Diagnosis of a substance use disorder results if two or three out of eleven criteria within the past year are satisfied, including context-dependent indicators like using more than intended or using despite harmful consequences. Id.; see Am. Psychol. Ass’n, supra note 31.

56 Lewis, supra note 38, at 23.

57 Quenqua, supra note 10.

58 Tiger, supra note 28, at 85–86. Some scholars argue methadone maintenance programs can be seen as punitive and/or an exercise of social control over people who use heroin, who are typically stereotyped more negatively than alcoholics. See Fox, supra note 28, at 167, 168.

59 In fact, the disease model is relatively recent, dating back to a little over 200 years ago. See Levine, supra note 30, at 26–29. Prior to this theory, addiction was generally characterized as a sinful or deviant habit to be corrected through punishment. Id.

60 See Tiger, supra note 28, at 48–51, 73–87; Scully, supra note 22, at 650; Whitney Beaman, Lisa Cannizzaro & Chloe Goldman, The Evolution of the Medical Definition of Homosexuality, Cornell Univ. (Oct. 30, 2007), https://confluence.cornell.edu/display/WWC/The+Evolution+of+the+Medical+Definition+of+Homosexuality [https://perma.cc/NMD4-CBX6]. This trend continues today with calls to treat violence as a contagious disease. See David Gonzalez, In Fight to Save Young People, Brooklyn Doctor Treats Violence as a Public Health Issue, N.Y. Times (Nov. 1, 2015), http://www.nytimes.com/2015/11/02/nyregion/in-fight-to-save-young-people-brooklyn-doctor-treats-violence-as-a-public-health-issue.html. In a telling quote, one of the advocates of this approach claims, “If violence is a disease, you need a vaccination.” Id.

It is important to note that development of drug policy in the United States has be inextricably linked with treatment of minority races and communities (specifically the control of these populations), and the medicalization of addiction can be seen as an extension of this. See Maia Szalavitz. Unbroken Brain: A Revolutionary New Way of Understanding Addiction 25–28 (2016). For an excellent account of how racial biases have molded drug policy, see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).

61 Reinarman & Granfield, supra note 43, at 4 (quoting John Seeley, Alcoholism is a Disease: Implications for Social Policy, in Society, Culture, and Drinking Patterns 586, 587 (David J. Pittman & Charles R. Snyder eds., 1962).

62 See Herbert Fingarette, The Perils of Powell: In Search of a Factual Foundation for the “Disease Concept of Alcoholism,” 83 Harv. L. Rev. 793, 801, 803–04, 806 (1970). Even Jellinek stated, “[A] disease is what the medical profession recognizes as such … [T]hrough this fact alone alcoholism becomes an illness ….” E.M. Jellinek, The Disease Concept of Alcoholism 12 (1960).

63 Harold Kalant, What Neurobiology Cannot Tell Us about Addiction, in Expanding Addiction, supra note 28, at 73, 78.

64 Tiger, supra note 28, at 83.

65 Id. at 79, 82–83; Fingarette, supra note 62, at 806–07. Of course, professional counseling may help individuals discover this willpower, but the underlying premise that willpower is essential remains.

66 See David T. Courtwright, The NIDA Brain Disease Paradigm: History, Resistance, and Spinoffs, in Expanding Addiction, supra note 28, at 62, 64, 67.

67 Daniel Akst, Interview with Gene M. Heyman: Is Addiction a Choice?, in Chemical Dependency 91, 92 (R. Espejo ed., 2011).

68 See, e.g., Carl Hart, High Price: A Neuroscientist's Journey of Self-Discovery That Challenges Everything You Know About Drugs and Society 267–74, 303 (2013) (summarizing research showing reductions in drug use when incentives are offered).

69 Akst, supra note 67, at 91; Bennett Foddy & Julian Savulescu, Addiction and Autonomy: Can Addicted People Consent to the Prescription of Their Drug of Addiction?, 20 Bioethics 1, 1 (2006).

70 See Catalina Lopez-Quintero et al., Probabilities and Predictors of Remission from Lifetime Nicotine, Alcohol, Cannabis, or Cocaine Dependence: Results from the National Epidemiologic Survey on Alcohol and Related Conditions, 106 Addiction 657 (2011), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3227547/ [https://perma.cc/HA8G-AXG8].

71 Id. Heroin addictions share a similar timeframe with alcohol. Szalavitz, supra note 25.

72 Lopez-Quintero, supra note 70.

73 Id.

74 Gene Heyman, Opinion, Drug Addiction is a Matter of Difficult Choices, N.Y. Times (Feb. 10, 2014), http://www.nytimes.com/roomfordebate/2014/02/10/what-is-addiction/drug-addiction-is-a-matter-of-difficult-choices; see Heyman, supra note 25, at 29; see also Robert Granfield & William Cloud, Social Capital and Natural Recovery: Overcoming Addiction Without Treatment, in Expanding Addiction, supra note 28, at 196, 196–97 (listing research demonstrating that most addicted people recover without any treatment).

75 Szalavitz, supra note 25; Heyman, Opinion, supra note 74.

76 Lewis, supra note 38, at 25; see Kalant, supra note 63, at 77. Brain scans of people addicted to drugs reveal nearly identical patterns as people in love, one of the most universal human experiences. Lewis, supra note 38, at 26, 42–43. For more on the comparison of love and addiction, see Szalavitz, supra note 60, at 142–54.

77 Lewis, supra note 38, at 31–32.

78 Id.; Velibor Bobo Kovac, The More the Merrier: A Multi-Sourced Model of Addiction, in Expanding Addiction, supra note 28, at 296, 303–04.

79 Eagleman, Correro, & Singh, supra note 40, at 17–18; Kovac, supra note 78, at 298–99, 304; Lewis, supra note 38, at 33, 37, 55–60.

80 Szalavitz, supra note 60, at 36-39; Fingarette, supra note 62, at 806. See Szalavitz, supra at 36–37 for a list of researchers and theorists who have contributed to the construction of addiction as a learning disorder.

81 Lewis, supra note 38, at 23, 42–43. A recent bizarre example of this extension led many news outlets to report the results of a study on the neurological effects of eating Oreo cookies as “Oreos are as addictive as cocaine.” See, e.g., Melissa Locker, Oreos May Be As Addictive As Cocaine, Time (Oct. 16, 2013), http://newsfeed.time.com/2013/10/16/oreos-may-be-as-addictive-as-cocaine/ [https://perma.cc/FD7V-LJHJ].

82 Kovac, supra note 78, at 296, 305–06 (arguing for a new model of addiction that encompasses consideration of a variety of factors, including societal, neurological, and psychological).

83 Esme Fuller-Thomson, Jessica L. Roane & Sarah Brennenstuhl, Three Types of Adverse Childhood Experiences, and Alcohol and Drug Dependence Among Adults: An Investigation Using Population-Based Data, 51 Substance Use & Misuse 1451, 1451 (2016). Research has demonstrated that trauma itself can affect brain development. Reinarman & Granfield, supra note 43, at 6.

84 Lewis, supra note 38, at 21. There are two commonly cited studies in support of the theory that addiction is a learned response to hardship. The first is a study demonstrating dramatically reduced heroin use among returning Vietnam veterans despite concerns of continuing addiction. Robins, Lee N. et al., Vietnam Veterans Three Years after Vietnam: How Our Study Changed Our View of Heroin, 19 Am. J. of Addiction, 203, 203 (2010)CrossRefGoogle ScholarPubMed. The second is the “Rat Park” experiment that found significantly lower morphine use among rats living in a stimulating social environment compared with those in isolation. The primary author of the Rat Park study explains his motivations for conducting, the outcomes of the study, and what it could mean for the study of addiction in his recent book. See Bruce Alexander, The Globalization of Addiction: A Study in Poverty of the Spirit (2010).

85 See Tiger, supra note 28, at 81–82.

86 Reinarman & Granfield, supra note 43, at 11–14.

87 Granfield & Cloud, supra note 74, at 208.

88 See Tiger, supra note 28, at 144–46.

89 See Fingarette, supra note 62, at 809 (explaining financial motives for the medical profession to claim addiction as a disease).

90 Substance Abuse & Mental Health Servs. Admin., Results from the 2014 National Survey on Drug Use and Health: Detailed Tables 120 tbl. 1.1A (2015); Pop1 Child Population: Number of Children (In Millions) Ages 0-17 in the United States by Age, 1950–2015 and Projected 2016–2050, ChildStats.gov, http://www.childstats.gov/americaschildren/tables/pop1.asp [https://perma.cc/C7US-RYKZ]; Annual Estimates of the Resident Population: April 1, 2010 to July 1, 2014, U.S. Census Bureau, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk. These percentages were calculated by taking the estimated number of people aged 12 years or older in 2014 who had reported lifetime and/or past month use of an illicit drug and dividing by the total number of people aged 12 years or older in the United States in 2014 (calculated by subtracting the population of children age 11 years and younger from the total U.S. population). Id.

It is critical to note that the vast majority of people who reported trying an illicit drug reported marijuana use. When you only consider drugs other than marijuana, lifetime use drops to twenty-nine percent and past month use to three percent. Id.

91 Hart, supra note 68, at 189; Szalavitz, supra note 60, at 23; Kalant, supra note 63, at 77; see also Christopher Ingraham, This Video by a Columbia University Neuroscientist Might Be the Best Case against the Drug War Ever Made, Tico Times (May 20, 2015), http://www.ticotimes.net/2015/05/20/this-video-bya-columbia-university-neuroscientist%E2%80%8B-might-be-the-best-case-against-the-drug-war-ever-made [https://perma.cc/LMA6-H3QX].

92 Kalant, supra note 63, at 77; Kovac, supra note 78, at 298 (“Mere consumption neither equals nor implies addiction.”).

93 See Substance Abuse & Mental Health Servs. Admin., supra note 90; Hart, supra note 68, at 189. The five to ten percent figure was calculated by divided the ten to twenty percent of people who become addicted by the fifty percent of the total population aged twelve years and older who try an illicit drug.

The line between mere drug use and addiction is elusive and highly context-dependent. While some could argue that we should focus on the point at which use becomes addiction to determine recipients for anti-intoxicant vaccination, this decision-making would be subjective and most likely plagued with racial and economic biases.

94 Nat’l. Inst. on Drug Abuse, supra note 17. Both Rush and Jellinek also acknowledged that initial use was a choice. See Jellinek, supra note 62, at 47 (“[I]t would appear that the acquisition of the ‘disease’ is in a limited way voluntary.”); Levine, supra note 30, at 29 (quoting Dr. Benjamin Rush) (“The use of strong drink is at first the effect of free agency.”).

95 Eagleman, Correro & Singh, supra note 40, at 15. Of course, there are circumstances where individuals are forced to consume drugs against their will, including where someone causes another to ingest drugs without their knowledge or threatens violence unless another takes the drugs. Individuals who develop an addiction due to these circumstances represent a very small proportion of all addicted people.

96 See, e.g., Drug Education, Drug Pol’y Alliance, http://www.drugpolicy.org/issues/drug-education/our-priorities [https://perma.cc/9SK6-HVKW]; Prevention of Substance Abuse and Mental Illness, Substance Abuse & Mental Health Servs. Admin., http://www.samhsa.gov/prevention [https://perma.cc/MQ72-YMFT].

97 See Substance Abuse & Mental Health Servs. Admin., supra note 96.

98 Id.; Can You Prevent Addiction?, Nat’l Ctr. on Addiction & Substance Abuse, http://www.centeronaddiction.org/addiction-prevention [https://perma.cc/C8ZX-2KKK]; Drug Pol’y Alliance, supra note 96. An increasingly popular form of prevention/early intervention for problematic drug use is known as Screening, Brief Intervention, and Referral to Treatment (SBIRT). SBIRT enlists health professionals to include screening for problematic drug use when people come to see them for other health services, and referral to resources if potentially problematic drug use is indicated. For more information on SBIRT, see Ctrs. for Medicare & Medicaid Servs., Screening, Brief Intervention, and Referral to Treatment (SBIRT) Services (2015).

99 Tim Madge, White Mischief: A Cultural History of Cocaine 96 (2001); Tiger, supra note 28, at 86–87.

100 Nat’l Academies Press, The Growth of Incarceration in the United States: Exploring Causes and Consequences 49–50 (2014); Courtwright, supra note 66, at 65; Drugs and Crime Facts, Bureau of Just. Stat., http://www.bjs.gov/content/dcf/enforce.cfm [https://perma.cc/B2T5-6ZKM] (“More than four-fifths of drug law violation arrests are for possession.”).

101 See Substance Abuse & Mental Health Servs. Admin., Projections of National Expenditures for Treatment of Mental and Substance Use Disorders, 2010–2020 64 (2014) (projecting total expenditures for treatment of substance use disorders in 2016 to be $34.5 billion (both public and private payers)); Count the Costs, The War on Drugs: Wasting Billions and Undermining Economies 3 (2013) (noting roughly $35.5 billion spent annually by the federal and state governments on drug law enforcement) (calculating total spent by subtracting the thirty-five percent of the $15 billion spent by the federal government on treatment and prevention, then adding the remainder to the $25.7 billion spent by state governments). Similar allocations are made within the White House Office on National Drug Control Policy annual budget. See Harrison Jacobs, ‘Good Riddance’: Some Progressives Are Cheering Trump’s Plans to Kill a ‘Drug War Dinosaur’, Bus. Insider (May 13, 2017), http://www.businessinsider.com/trump-ondcp-director-budget-progressives-2017-5.

102 The notable example of a category of diseases treated in a similar manner is mental illnesses. See Risdon N. Slate, Jacqueline K. Buffington-Vollum & W. Wesley Johnson, The Criminalization of Mental Illness: Crisis and Opportunity for the Justice System (2013).

103 The same bifurcation exists in federal legislation. For example, possession, sale, and manufacture of drugs are federal crimes, but the law requires most health insurance plans to cover “substance use disorder services,” and benefits offered for addiction treatment must not be more restrictive than those offered for medical/surgical treatment. See Patient Protection and Affordable Care Act, 42 U.S.C. § 18022(b)(1)(E) (2010); Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. §§ 841–865 (1970); see, e.g., Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act, 29 U.S.C. § 1185a (2008). Furthermore, federal law provides protection from discrimination for people who are in or have completed drug treatment and remain abstinent, but no protection if a person is currently engaging in illegal drug use. Americans with Disabilities Act, 42 U.S.C. § 12114(a)–(b) (1990). In recently enacted legislation, Congress approved increased opioid use disorder prevention and treatment efforts, but also authorized grants for law enforcement activities. See Comprehensive Addiction and Recovery Act, Pub. L. No. 114-198, §§ 102, 201, 301-303 (2016).

104 Linder v. United States, 268 U.S. 5, 10–12 (1925). The Harrison Narcotics Tax Act of 1914 regulated and taxed the manufacture and sale of opiate and coca products and was the first federal drug prohibition law. See Harrison Narcotics Tax Act, Pub. L. No. 63-223, 38 Stat. 785 (1914); How Did We Get Here?, The Economist (July 26, 2001), http://www.economist.com/node/706583 [https://perma.cc/T2FS-56QG].

105 Linder, 268 U.S. at 17–19, 22–23; see David Kopel, Supreme Court: “Obviously, Direct Control of Medical Practice in the States Is Beyond the Power of the Federal Government”, Volokh Conspiracy (Dec. 1, 2011), http://volokh.com/2011/12/01/supreme-court-obviously-direct-control-of-medical-practice-in-the-states-is-beyond-the-power-of-the-federal-government/ [https://perma.cc/ZF3R-A9G9] (explaining that after 1937, the Supreme Court repeatedly cited Linder when upholding federal statutes to distinguish them from the “mis-application of the statute in Linder”). The Court cites several preceding decisions considering criminal prosecutions under the Harrison Act, but only one, United States v. Behrman, seems to indicate the Court may regard addiction as a disease. See Linder, 286 U.S. at 18–22; United States v. Behrman, 258 U.S. 280, 286 (1922) (noting that the indictment charged defendant’s dispersal of morphine, heroin, and cocaine was not “for the purpose of treating any disease or condition other than such addiction”) (emphasis added).

106 Linder, 286 U.S. at 18.

107 Id. Although the Court sanctioned the ability of physicians to prescribe the drug to which a person is addicted, the federal government persecuted and prosecuted doctors for this practice until its extinction. See Johann Hari, Chasing the Scream: The First and Last Days of the War on Drugs 33–41 (2015).

108 Robinson v. California, 370 U.S. 660 (1962).

109 Id. at 660–61.

110 Id. at 664. The Eighth Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.

111 Robinson, 370 U.S. at 668.

112 Id. at 664–65. Importantly, the Court relied on Jacobson v. Massachusetts to support the claim that states could impose criminal penalties for failure to comply with compulsory treatment. Id. at 665. The Jacobson decision is discussed in detail in Part IV.A.

113 Id. at 666.

114 Id. at 667. The Court cites Linder as establishing the legal precedent of addiction as a disease. Id. at 667, n.8.

115 Id. at 667; Lebowitz, David, “Proper Subjects for Medical Treatment?” Addiction, Prison-Based Drug Treatment, and the Eighth Amendment, 14 DePaul J. Health Care L. 271, 289 (2012)Google Scholar. The Court notes, “Not only may addiction innocently result from the use of medically prescribed narcotics, but a person may even be a narcotics addict from the moment of his birth.” Robinson, 370 U.S. at 667, n.9. Lower courts during this time period also accepted the assertion that addiction can be communicable. See, e.g., Ortega v. Rasor, 291 F. Supp. 748, 751 (S.D. Fla. 1968) (citing legislative history of the Narcotic Rehabilitation Act of 1966 that called addicts “vector[s] of the ‘disease’” and claimed that curing an addict “is the same thing as isolating and curing a carrier of a communicable disease”).

116 Robinson, 370 U.S. at 666–67.

117 Powell v. Texas, 392 U.S. 514 (1968); Lebowitz, supra note 115, at 289.

118 Powell, 392 U.S. at 517. Powell was granted a new trial, resulting in conviction and a $50 fine. Id.

119 Id.

120 Id. at 533–34, 537.

121 Id. at 522–26, 537. Interestingly, the Court discussed Jellinek’s definitions of alcoholism in some detail. See id. at 522–26.

122 Id. at 533–37.

123 Id. at 533; Lebowitz, supra note 115, at 289.

124 Traynor v. Turnage, 485 U.S. 535 (1988).

125 Id. at 538.

126 Id.

127 Id. at 539–41.

128 Id. at 545–51.

129 Id. at 550–52.

130 Id. at 550 (citing McKelvey v. Turnage, 792 F.2d 194, 200-01 (D.C. Cir. 1986) (per curiam)).

131 Id.

132 Id. at 552.

133 Norman S. Miller & Sarah Spratt, Addictions and the Law, in Principles of Addictions and the Law: Applications in Forensic, Mental Health, and Medical Practice 17, 31 (Norman S. Miller ed., 2010).

134 Tiger, supra note 28, at 20.

135 Id. at 5–6; Molly J. Dingel, Katrina Karkazis & Barbara A. Koenig, Framing Nicotine Addiction as a “Disease of the Brain”: Social and Ethical Consequences, in Expanding Addiction 90, 92 (Robert Granfield & Craig Reinarman, eds., 2015).

136 Tiger, supra note 28, at 20–21.

137 Although drug courts receive near universal praise in the media, their efficacy and philosophy have been severely critiqued. See Tiger, supra note 28; Drug Courts are Not the Answer: Toward a Health-Centered Approach to Drug Use, Drug Pol’y Alliance, (2011), https://www.drugpolicy.org/docUploads/Drug_Courts_Are_Not_the_Answer_Final2.pdf.

138 Morse v. Frederick, 551 U.S. 393, 407 (2007) (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 661 (1995)).

139 Id. (quoting Acton, 515 U.S. at 662); see also Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottwatomie Cty. v. Earls, 536 U.S. 822, 834 (2002) (“The drug abuse problem among our Nation's youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse.”). In considering the relative intrusiveness of student drug testing in Earls, the Court notes “Schoolchildren are routinely required to submit to…vaccinations against disease.” Earls, 536 U.S. at 830–31.

140 Morse, 551 U.S. at 408.

141 Earls, 536 U.S. at 824. It is noteworthy that the court called drug use – not just addiction – an epidemic. Id.

142 Morse, 551 U.S. at 410 (upholding confiscation of banner reading “Bong Hits 4 Jesus” and suspension of student because schools can restrict speech when it can be reasonably believed to promote illegal drug use); Earls, 536 U.S. at 838 (upholding requirement for all middle and high school students to consent to drug testing before participating in any extracurricular activity); Vernonia, 515 U.S. at 665–66 (upholding requirement for all students engaged in athletics to consent to drug testing).

143 See Steve P. Calandrillo, Vanishing Vaccines: Why Are So Many Americans Opting Out of Vaccinating Their Children?, 37 U. Mich. J.L. Reform 353, 365–66 (2004); Maureen Birmingham & Claudia Stein, The Burden of Vaccine-Preventable Diseases, in The Vaccine Book 1, 3 (Barry R. Bloom & Paul-Henri Lambert eds., 2003). Universal vaccination is seen as one of the two most important accomplishments in modern public health, the other being the availability of clean water. Calandrillo, supra, at 438.

144 Hodge, James G., Jr. & Gostin, Lawrence I., School Vaccination Requirements: Historical, Social and Legal Perspectives, 90 Ky. L.J. 831, 833 (2001)Google ScholarPubMed. British physician Edward Jenner created the first successful vaccine (targeting smallpox) from infected cows, which he tested on May 14, 1796. Allen, supra note 7, at 46–49. Although Jenner is regarded as the father of vaccination, the practice of variolation (scratching of the skin with a contaminated knife or other sharp object) long preceded the first vaccine. Id. at 27.

145 Id. at 14–15. Vaccines can be divided into several groups based on how they work. See id. at 20–21. For an in-depth description of the immune system response to antigens, see Robert A. Seder & John R. Mascola, Basic Immunology of Vaccine Development, in The Vaccine Book 51 (Barry R. Bloom & Paul-Henri Lambert eds., 2003).

146 Allen, supra note 7, at 15.

147 Id. at 15; see, e.g., Tdap (Tetanus, Diphtheria, Pertussis) Vaccine Information Statement, Ctrs. for Disease Control & Prev., http://www.cdc.gov/vaccines/hcp/vis/vis-statements/tdap.html [https://perma.cc/JPQ9-STB9] (“As with any medicine, there is a very remote chance of a vaccine causing a serious injury or death.”).

148 Alvin N. El Amin, Michelle T. Parra, Robert Kim-Farley, & Jonathan E. Fielding, Ethical Issues Concerning Vaccination Requirements, 34 Pub. Health Revs. 1, 3–4 (2012).

149 Oxford Vaccine Group, Herd Immunity, Univ. of Oxford, http://vk.ovg.ox.ac.uk/herd-immunity [https://perma.cc/VP8V-VPQC].

150 Id.

151 Id.

152 Id.

153 Id.

154 Angus Dawson, Vaccination Ethics, in Public Health Ethics: Key Concepts and Issues in Policy and Practice 143, 145 (Angus Dawson ed., 2011).

155 See Vaccines, Am. Pub. Health Ass’n, https://www.apha.org/topics-and-issues/vaccines [https://perma.cc/JAA2-KQ5N].

156 Ctrs. for Disease Control & Prev., 2017 Recommended Immunizations For Children From Birth Through 6 Years Old (Feb. 6, 2017), https://www.cdc.gov/vaccines/parents/downloads/parent-ver-sch-0-6yrs.pdf.

157 For example, scientists attempted to create vaccines for severe acute respiratory syndrome (SARS) in the early to mid-2000s, H1N1 influenza (swine flu) towards the end of the 2000s, and Ebola in 2015. See, e.g., Laura Smith-Spark, WHO: Trials Show New Ebola Vaccine is ‘Highly Effective’, CNN (Aug. 3, 2015), http://www.cnn.com/2015/07/31/health/guinea-ebola-vaccine/ [https://perma.cc/627X-YZDR]; see, e.g., Vaccine Against 2009 H1N1 Influenza Virus, Ctrs. for Disease Control & Prev., http://www.cdc.gov/h1n1flu/vaccination/public/vaccination_qa_pub.htm [https://perma.cc/Y267-HN4T]; Jiang, Shibo, He, Yuxian & Liu, Shuwen, SARS Vaccine Development, 11 Emerging Infectious Diseases 1016, 1016 (2005)CrossRefGoogle ScholarPubMed. Currently, researchers are attempting to create a vaccine for the Zika virus, a disease carried by mosquitoes which is spreading rapidly across Latin America and is linked to severe birth defects. See Maggi Fox, New Dengue Vaccine May Form Basis for Zika Vaccine, NBC (Mar. 17, 2016, 12:08 PM), http://www.nbcnews.com/storyline/zika-virus-outbreak/new-dengue-vaccine-may-form-basis-zika-vaccine-n540851 [https://perma.cc/ZCS2-AKTW].

158 See Alexandra Ossola, Can a Vaccine Cure Heroin Addiction, Daily Beast (Mar. 19, 2016), http://www.thedailybeast.com/articles/2016/03/19/can-a-vaccine-cure-heroin-addiction.html [https://perma.cc/M8LF-2QTG].

159 See Ossola, supra note 11; Melissa Healy, A New Way to Help Meth Addicts Stay Clean: Antibodies, L.A. Times (Nov. 5, 2014, 3:00 AM), http://www.latimes.com/nation/la-sci-snmethamphetamine-drug-addiction-20141104-story.html [https://perma.cc/CP37-M3WG]; Quenqua, supra note 10; Khalil Thirlaway, Vaccinating Against Addiction, The Naked Scientists, (Aug. 20, 2015), http://www.thenakedscientists.com/HTML/articles/article/vaccinating-against-addiction/ [https://perma.cc/8N5G-S4GT]. Researchers have attempted to create vaccines targeting alcohol and marijuana, but without success. Quenqua, supra. Fentanyl, an opioid, recently received attention as the substance on which legendary musician Prince fatally overdosed. See Ralph Ellis & Sara Sidner, Prince Died of Accidental Overdose of Opioid Fentanyl, Medical Examiner Says, CNN (June 3, 2016, 1:41 AM), http://www.cnn.com/2016/06/02/health/prince-death-opioid-overdose/index.html [https://perma.cc/336NX4HK].

160 Ridgely & Iguchi, supra note 21, at 269–70.

161 Quenqua, supra note 10; see Kayt Sukel, Cocaine Vaccine May Offer Alternative Therapy to Addicts, in Chemical Dependency 141 (R. Espejo ed., 2011); Stevenson, Dru, Libertarian Paternalism: The Cocaine Vaccine as a Test Case for the Sunstein/Thaler Model, 3 Rutgers J.L. & Urban Pol. 4, 13 (2005)Google Scholar .

162 Boire, supra note 21, at 221; Stevenson, supra note 161, at 13; New Anti-Cocaine Vaccine Passes Key Test, Voice Am. (May 10, 2013), http://www.voanews.com/content/new-anticocaine-vaccine-passes-key-test/1658848.html [https://perma.cc/DU77-HTBC]; Quenqua, supra note 10. Alternatively, a vaccine could introduce pre-developed antibodies targeted at a specific drug. See Stephanie Ramos, Could an Anti-Drug Vaccination Make ’Just Say No’ Go Away?, ABC News (Aug. 17, 2016), http://abcnews.go.com/Health/story?id=118193&page=1 [https://perma.cc/34J7-9LTZ].

163 Boire, supra note 21, at 218; Stevenson, supra note 161, at 13; New Anti-Cocaine Vaccine Passes Key Test, supra note 162.

164 Eagleman, Correro & Singh, supra note 40, at 25.

165 Quenqua, supra note 10; see, e.g., Hall & Carter, supra note 21, at 337.

166 Stevenson, supra note 161, at 13. There has also been some success in administration to non-human primates. See New Anti-Cocaine Vaccine Passes Key Test, supra note 162.

167 See Kosten, Thomas, Domingo, Coreen, Orsen, Frank, & Kinsey, Berma, Vaccines Against Stimulants: Cocaine and MA, 77 Brit. J. Clinical Pharmacology 368, 372 (2013)CrossRefGoogle Scholar; Haney, Margaret et al., Cocaine-Specific Antibodies Blunt the Subjective Effects of Smoked Cocaine in Humans, 67 Biological Psychiatry 59, 63 (2010)CrossRefGoogle ScholarPubMed; Stevenson, supra note 161, at 13; Hall & Carter, supra note 21, at 337–38.

168 Haney et al., supra note 167, at 62; Stevenson, supra note 161, at 13.

169 Researchers have cited funding challenges as a barrier to faster development. See Alexandra Sifferlin, Why You’ve Never Heard of the Vaccine for Heroin Addiction, Time (Jan. 9, 2015), http://time.com/3654784/why-youve-never-heard-of-the-vaccine-for-heroin-addiction/ [https://perma.cc/PBF4-D3F7]; Quenqua, supra note 10.

170 Courtwright, supra note 66, at 67.

171 Id.; Cf. Sylvia Law, Human Papillomavirus Vaccination, Private Choice, and Public Health, 41 Univ. Cal. Davis L. Rev. 1731, 1757–59 (2008) (describing how Merck aggressively lobbied legislatures to make the HPV vaccine a requirement for school attendance in order to increase sales). Interestingly, profit motives of drug treatment providers may lead them to oppose a mandate. Cf. Fox, supra note 28, at 162–63; Constance Weisner & Robin Room, Financing and Ideology in Alcohol Treatment, in Expanding Addiction, supra note 28, at 143, 149–54 (explaining how financial motives of the addiction treatment industry have shaped treatment modality, ideology, and clientele).

172 See, e.g., supra note 14 for more information on rising opioid-related addiction and deaths.

173 See Paul R. Pentel, Vaccines and Depot Medications for Drug Addiction: Rationale, Mechanisms of Action, and Treatment Implications, in New Treatments for Addiction: Behavioral, Ethical, Legal, and Social Questions 63, 85–86 (Henrick J. Harwood & Tracy G. Myers eds., 2004).

174 See Quenqua, supra note 10.

175 See Inaya Hajj Hussein, et al., Vaccines Through Centuries: Major Cornerstones of Global Health, 3 Frontiers in Pub. Health 1, 2 (2015).

176 See Thirlaway, supra note 159.

177 See id.

178 See Carl Sherman, The Defining Features of Drug Intoxication and Addiction can be Traced to Disruptions in Neuron-to Neuron Signaling, Nat’l. Inst. on Drug Abuse (Mar. 9, 2017), https://www.drugabuse.gov/news-events/nida-notes/2017/03/impacts-drugs-neurotransmission [https://perma.cc/EU5D-YGMC].

179 See Frances Miller & Kaley Klanica, Vaccines and Immunotherapies to Control Addiction in Minors: The Legal Framework, in New Treatments for Addiction: Behavioral, Ethical, Legal, and Social Questions 276, 292 (Henrick J. Harwood & Tracy G. Myers eds., 2004).

180 See Thomas H. Murray, Ethical Issues in Immunotherapies and Depot Medications for Substance Abuse, in New Treatments for Addiction: Behavioral, Ethical, Legal, and Social Questions 188, 209–10 (Henrick J. Harwood & Tracy G. Myers eds., 2004). Not all currently mandated vaccines are designed to increase herd immunity, as is discussed infra Part IV.B.

181 For other concerns, see Hall & Carter, supra note 21; Robert J. MacCoun, Anticipating Unintended Consequences of Vaccine-Like Immunotherapies and Depot Medications for Addictive Drug Use, in New Treatments for Addiction: Behavioral, Ethical, Legal, and Social Questions 241, 263–65 (Henrick J. Harwood & Tracy G. Myers eds., 2004); Elisabeth Fischer, Curing Addiction: Vaccines to End Drug Abuse, Pharmaceutical-technology.com (Apr. 24, 2012), http://www.pharmaceutical-technology.com/features/featuredrug-addiction-medication-vaccine-drug-abuse/ [https://perma.cc/Y869-3FHT].

182 Hall & Carter, supra note 21, at 337–38; Pentel, supra note 173, at 83–84; MacCoun, supra note 181, at 254–57, 263–64.

183 MacCoun, supra note 181, at 257–58.

184 See Hall & Carter, supra note 21, at 338.

185 To illustrate, legislators struggle to keep up with the proliferation of synthetic drugs that mimic the effects of various illicit drugs (e.g., “bath salts” (cathinones), “flakka” (alpha-PVP), and “K2” or “Spice” (synthetic cannabinoids)), much less pass legislation that effectively outlaws new drugs as they become available. Sarah Breitenbach, Synthetic Drugs Send States Scrambling, Pew Charitable Trusts (Apr. 19, 2016), http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2016/04/29/synthetic-drugs-send-states-scrambling [https://perma.cc/5VC9-B8NE].

186 See Jeneen Interlandi, What Addicts Need, Newsweek (Feb. 23, 2008), http://www.newsweek.com/what-addicts-need-93767 [https://perma.cc/WY77-GQS7].

187 See Thirlaway, supra note 159.

188 See id.

189 Cf. Scripps Res. Inst., Preclinical Study Shows Heroin Vaccine Blocks Relapse, 13 News & Views (May 13, 2013) http://www.scripps.edu/newsandviews/e_20130513/heroin.html [https://perma.cc/TSM5-DKET] (addressing the concern that a heroin vaccine in development would impact effectiveness of other opioid medications).

190 See Gary Stix, Meth Hype Could Undermine Good Medicine, Sci. Am. (Dec. 27, 2011), http://www.scientificamerican.com/article/hype-over-the-perils-of-meth/ [https://perma.cc/DNF3-VQ59]; DrugFacts: Stimulate ADHD Medications: Methylphenidate and Amphetamines, Nat’l Inst. on Drug Abuse, https://www.drugabuse.gov/publications/drugfacts/stimulant-adhd-medications-methylphenidate-amphetamines [https://perma.cc/RBY6-S85F].

191 Some reasons for this include a strong sense of individual autonomy, fear of side effects, lack of access to vaccination, and people who aren’t concerned with vaccine-preventable diseases. Hodge & Gostin, supra note 144, at 881; Emily Mullen, The Four Main Reasons People Don’t Vaccinate, Forbes (Oct. 6, 2015), http://www.forbes.com/sites/emilymullin/2015/10/06/the-4-main-reasons-people-dont-vaccinate/#4314697a34a1; Elizabeth Bruenig, Why Voluntary Vaccines Would Never Work in America, New Republic (Feb. 3, 2015), https://newrepublic.com/article/120951/voluntary-vaccines-work-europe-wouldnt-work-us [https://perma.cc/585L-FLYW].

192 Hodge & Gostin, supra note 144 at 833.

193 See id. at 851; see also Jacobson v. Massachusetts, 197 U.S. 11, 32–35 (1905) (listing various state court opinions upholding vaccination as a condition of school attendance).

194 Hodge & Gostin, supra note 144, at 851.

195 See id. at 851–52. The Centers for Disease Control and Prevention recently reported that vaccination rates for most of the long-standing recommended vaccines are at or above ninety percent for children entering kindergarten. Ctrs. for Disease Control & Prev., Vaccination Coverage Among Children in Kindergarten – United States, 2009–10 School Year, 306 JAMA 1196–97 (2011).

196 See Hodge & Gostin, supra note 144, at 851.

197 Jacobson, 197 U.S. at 35. For a discussion of case law preceding Jacobson, see Hodge & Gostin, supra note 144, at 853–54.

198 Ben Horowitz, A Shot in the Arm: What a Modern Approach to Jacobson v. Massachusetts Means for Mandatory Vaccinations During a Public Health Emergency, 60 Am. U. L. Rev. 1715, 1718 (2011).

199 Smallpox, World Health Org., http://www.who.int/csr/disease/smallpox/en/ [https://perma.cc/F8QA-2XFU].

200 Smallpox – Prevention and Treatment, Ctrs. Disease Control & Prevention, https://www.cdc.gov/smallpox/prevention-treatment/index.html [https://perma.cc/R9MY-5UH9].

201 Jacobson, 197 U.S. at 12–13.

202 Id. at 36–37; Allen, supra note 7, at 98.

203 Jacobson, 197 U.S. at 14. This would be close to $150 today. Henry Curtis, Revisiting Jacobson: An Analysis of the Modern Day Implications of Jacobson v. Massachusetts, Voices in Bioethics, (Mar. 26, 2014), https://www.voicesinbioethics.net/features/2014/03/26/revisiting-jacobson-an-analysis-of-the-modern-day-implications-of-jacobson-v-massachusetts [https://perma.cc/N4EM-6ETD].

204 Jacobson, 197 U.S. at 14, 23–24.

205 Id. at 13. Jacobson also argued that the statute violated the “rights secured … by the preamble to the Constitution” and the spirit of the Constitution. The Court summarily dismissed both arguments. Id. at 14.

206 Id. at 24–25. The term “police power” was coined by Chief Justice Marshall and generally refers to a state’s authority to govern all matters within its jurisdiction. See Brown v. Maryland, 25 U.S. (12 Wheat) 419, 443 (1827); Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 209–10 (1824).

207 Jacobson, 197 U.S. at 27.

208 Id. at 26.

209 Id. at 28. The Court employed a type of rational basis review. See id. at 31 (“[I]f a statute purporting to have been enacted to protect the public health, the public morals, or public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”); Horowitz, supra note 198, at 1733.

210 Jacobson, 197 U.S. at 28, 38–39. Despite Jacobson’s arguments that receiving the smallpox vaccine would harm him, the Court ruled he was not exempt. Id. at 39.

211 Horowitz, supra note 198, at 1720. In fact, Justice Oliver Wendell Holmes, Jr. cited Jacobson in the Supreme Court opinion of Buck v. Bell, the notorious case upholding a state’s authority to sterilize people who are “feeble-minded” or “imbeciles,” reasoning that “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” Buck v. Bell, 274 U.S. 200, 207 (1927).

212 Hodge & Gostin, supra note 144, at 856.

213 Id.

214 Id. (citing Jacobson, 197 U.S. at 31).

215 Id. at 856–57.

216 Id. at 857.

217 Id.; see also Jacobs, supra note 15, at 183.

218 Zucht v. King, 260 U.S. 174 (1922).

219 Id. at 175.

220 Id.

221 Id. at 176 (citations omitted).

222 Id.

223 Id. at 177.

224 Note, Toward a Twenty-First-Century Jacobson v. Massachusetts, 121 Harv. L. Rev. 1820, 1824 (2008). The exception is when a religious exemption is challenged on First Amendment or equal protection grounds. See Hodge & Gostin, supra note 144, at 863–67 (listing cases containing constitutional challenges to vaccine mandates).

225 For a list of cases considering vaccine mandates up to 2001, see Hodge & Gostin, supra note 144, at 863–67. See also Michael Sanzo, Vaccines and the Law, 19 Pepp. L. Rev. 29, 32 n.25, n.26 (1991).

226 Phillips v. New York, 775 F.3d 538, 540–41 (2d Cir. 2015). The varicella (chickenpox) vaccine was at issue. Id.

227 Id. at 542 (citing Caviezel v. Great Neck Pub. Schs., 500 Fed. Appx. 16, 19 (2d Cir. 2012) (summary order)). The Second Circuit also rejected claims that the mandate violated the free exercise clause of the First Amendment, equal protection, and Ninth Amendment. Id. at 543–44.

228 See, e.g., Workman v. Mingo Cty. Bd. Ed., 419 Fed. Appx 348, 352–56 (4th Cir. 2011) (noting “the Supreme Court has consistently recognized that a state may constitutionally require school children to be immunized” in upholding mandatory vaccination laws against Freedom of Religion, Due Process, and Equal Protection claims and refusing to question Jacobson because the court is “bound by the precedents of our Supreme Court.”).

229 Jacobs, supra note 15, at 201; Mariner, Wendy K., Annas, George J. & Glantz, Leonard H., Jacobson v. Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law, 95 Am. J. Pub. Health 581, 583–84 (2005)CrossRefGoogle Scholar. The four factors are discussed in the previous subpart. See supra Part IV.A.

230 State by State, supra note 5. All fifty states require three vaccinations; forty-six states require five vaccinations. Id.

231 Id.; Kaiser Family Found., The HPV Vaccine: Access and Use in the U.S. 4 (2015). Mandates also include vaccines for diseases that are not particularly dangerous, including chicken pox and rotavirus. Wood, Lane, A Young Vaccine for Young Girls: Should the Human Papillomavirus Vaccination Be Mandatory for Public School Attendance?, 20 Health Lawyer 30, 36 (2008)Google Scholar.

232 Tetanus, Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/tetanus/home/ovc-20200456 [https://perma.cc/XCQ4-WFZ3].

233 Jacobs, supra note 15, at 175.

234 Ctrs. for Disease Control & Prev., Epidemiology and Prevention of Vaccine-Preventable Diseases 345 (2015); Oxford Vaccine Group, supra note 149.

235 Id.

236 State by State, supra note 5.

237 Law, supra note 171, at 1753.

238 State ex rel. Mack v. Bd. of Educ. of Covington, 204 N.E.2d 86, 90–91 (Ohio Ct. App. 1963) (rehearing denied).

239 Reiss, supra note 15, at 112 n.67; Tdap, supra note 147.

240 Hepatitis B, Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/hepatitis-b/basics/definition/con-20022210 [https://perma.cc/E6RV-RHJU].

241 Id.

242 Harv. L. Rev., supra note 224, at 1828. Of course, individuals can be forced into high-risk situations (e.g., rape).

243 State by State, supra note 5.

244 Arde-Acquah, Phoebe, Salus Populi Lex Esto: Balancing Civil Liberties and Public Health Interventions in Modern Vaccination Policy, 7 Wash. U. Juris. Rev. 337, 358 (2015)Google Scholar.

245 Jones v. State Dep’t of Health, 18 P.3d 1189, 1195 (Wyo. 2001); In re LePage, 18 P.3d 1177, 1181 (Wyo. 2001). The court held that the State Department of Health had overstepped its statutory authority by attempting to investigate whether religious and medical concerns of parents asking for exemptions were sincere. Jones, 18 P.3d at 1195; In re LePage, 18 P.3d at 1181. “In effect, the court’s decision expanded the exemption provision to a no-questions-asked opt-out.” Harv. L. Rev., supra note 224, at 1830.

246 McCarthy v. Boozman, 212 F. Supp. 2d 945, 946 (W.D. Ark. 2002); Harv. L. Rev., supra note 224, at 1830.

247 McCarthy, 212 F. Supp. 2d at 948. The court went on to strike down the religious exemption provision in the state statute as violative of the Establishment Clause. Id. at 949.

248 Id.

249 Boone v. Boozman, 217 F. Supp. 2d 938, 942 (E.D. Ark. 2002).

250 Id. at 956 (citations omitted). In a separate opinion regarding Arkansas’ Hepatitis B vaccine mandate, the same judge wrote that the mandate was “a reasonable exercise of the State's police power and is constitutionally permissible ….” Brock v. Boozman, 2002 U.S. Dist. LEXIS 15479 (E.D. Ark. Aug. 12, 2002) (unpublished opinion).

251 Boone, 217 F. Supp. 2d at 956–57. Similar to McCarthy, the court also found that the religious exemption provision was unconstitutional. Id. at 957.

252 Kaiser Family Found., supra note 231, at 1.

253 Id. at 1–2.

254 See id. at 1; Hepatitis B, supra note 240.

255 Wood, supra note 231, at 30. On the other hand, Pap tests identify precancerous cells that must be removed through an invasive procedure. See Nat’l Cancer Inst., Pap and HPV Testing, Nat’l Inst. Health, http://www.cancer.gov/types/cervical/pap-hpv-testing-fact-sheet#q9 [https://perma.cc/SJD7-BHGS] (describing procedures to remove cervical abnormalities). Thus, some may view vaccination as a less intrusive intervention.

256 See Jacobs, supra note 15, at 192; Wood, supra note 231, at 34.

257 Arde-Acquah, supra note 244, at 358. Texas Governor Rick Perry issued an executive order mandating HPV vaccination, but this was overturned by the Texas legislature. Id. at 359.

258 HPV Vaccine: State Legislation and Statutes, Nat’l Conf. State Legislatures, http://www.ncsl.org/research/health/hpv-vaccine-state-legislation-and-statutes.aspx [https://perma.cc/3UTH-GVZK]. Virginia’s mandate applies only to females and allows a no-questions-asked opt-out. See Va. Code Ann. § 32.1-46 (2007). D.C.’s mandate applies to both females and males and allows a no-questions-asked opt-out. See D.C. Code § 7-1651.04 (2007). Rhode Island’s mandate applies to both females and males and allows only for religious and medical exemptions. 23-1 R.I. Code R. § 3.3.7 (as amended July 2014).

259 For arguments in support of the constitutionality of an HPV mandate, see, e.g., Dailard, Cynthia, Achieving Universal Vaccination Against Cervical Cancer in the United States: The Need and the Means, 9 Guttmacher Pol’y Rev. 12 (2006)Google Scholar; Law, supra note 171. For arguments against the constitutionality of an HPV mandate, see, e.g., Jacobs, supra note 15; Wood supra note 231. Further debate centers on whether states can and should mandate HPV vaccines for males as well as females. See, e.g., Homan, Katherine, Note, Do the Ends Justify the Means? Compelling the Use of HPV Vaccination on Men, 27 J. Contemp. Health L. & Pol’y 183 (2010)Google ScholarPubMed; Lemke, Benjamin, Note, Why Mandatory Vaccination of Males Against HPV is Unconstitutional: Offering a New Approach to an Old Problem, 19 B.U. Pub. Int. L. J. 261 (2010)Google Scholar.

260 Gostin, Lawrence, Jacobson v. Massachusetts at 100 Years: Police Power and Civil Liberties in Tension, 95 Am. J. Pub. Health, 576, 577 (2005)CrossRefGoogle Scholar (“In rare instances where limits were imposed, it was because a board [of health] exceeded its statutory authority or because the courts construed that authority as requiring a state of emergency.”).

261 See e.g., Harv. L. Rev., supra note 224.

262 Gostin, supra note 260 at 580; Jacobs, supra note 15 at 200–01.

263 Gostin, supra note 260 at 579; Jacobs, supra note 15 at 183.

264 See Gostin, supra note 260 at 579.

265 See Jacobson v. Massachusetts, 197 U.S. 11 (1905).

266 Gostin, supra note 260, at 580.

267 Jacobs, supra note 15, at 200–01.

268 Id. at 201. Jacobs would also consider the safety and efficacy of the vaccine and amount of clinical experience as a determinant of safety and efficacy. Id. Because this article assumes an anti-intoxicant vaccine would be safe and effective, these points will not be discussed.

269 Id. Jacobs also argues that there should not be parental opt-out provisions for vaccines required for school entry because this undermines the herd immunity argument. Id. For diseases where herd immunity is not a consideration, a school mandate is inappropriate. Id.

This article does not address the constitutional ramifications of an anti-intoxicant vaccine mandate with broad opt-out provisions due to space constraints.

270 Id.; see also Homan, supra note 259, at 206–11 (arguing an HPV mandate for men would not satisfy the Jacobson standard); Wood, supra note 231, at 33 (arguing HPV mandate would fail necessity requirement).

271 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

272 Compare Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (striking down a law requiring sterilization of certain “habitual criminals” on equal protection grounds, but also expressing concern that the sterilization law infringed on the important liberty interest of marriage and procreation, “one of the basic civil rights of man”) with Buck v. Bell, 274 U.S. at 207 (upholding a state’s authority to sterilize people who are “feeble-minded” or “imbeciles,” reasoning that “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes”).

273 See, e.g., Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2419 (2013) (quoting Grutter v. Bollinger, 539 U.S. 306, 326 (2003)); Zablocki v. Redhail, 434 U.S. 374, 388 (1978); San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 16–17 (1973).

274 See Republican Party of Minn. v. White, 416 F.3d 738, 749–51 (8th Cir. 2005) (discussing attempts made to define compelling state interest).

275 Fisher, 133 S. Ct. at 2420; Rodriguez, 411 U.S. at 125; White, 416 F.3d at 751. Whether the regulation must be the least restrictive option or merely less restrictive is the subject of debate. See Roy G. Spece, Jr. & David Yokum, Scrutinizing Strict Scrutiny, 40 Vt. L. Rev. 285, 309–10 (2015).

276 Winkler, Adam, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 802 (2006)Google Scholar (citing Carolene Products, 304 U.S. at 153 n.4).

277 Chemerinsky, Erwin, Substantive Due Process, 15 Touro L. Rev. 1501, 1509 (1999)Google Scholar ; Horowitz, supra note 198 at 1723–24.

278 Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion); Roe v. Wade, 410 U.S. 113, 152 (1973) (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)).

279 See Zablocki, 434 U.S. at 384; Loving v. Virginia, 388 U.S. 1, 12 (1967).

280 See Carey v. Population Servs. Int’l, 431 U.S. 678, 684–91 (1977); Griswold v. Connecticut, 381 U.S. 479, 481–86 (1965).

281 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 849, 869–79 (1992); Roe, 410 U.S. at 152–66.

282 See Stanley v. Ill., 405 U.S. 645, 656–57 (1972).

283 See Moore, 431 U.S. at 501–03.

284 See Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–36 (1925); Meyer v. Nebraska, 262 U.S. 390, 400 (1923).

285 See Foucha v. Louisiana, 504 U.S. 71, 80–83 (1992).

286 See Washington v. Harper, 494 U.S. 210 (1990).

287 Id.

288 Id. at 214–18.

289 Id. at 221–22.

290 Id. at 226–27.

291 See Sell v. United States, 539 U.S. 166, 177–83 (2003); Riggins v. Nevada, 504 U.S. 127, 137 (1992). Both cases appear to employ a form of strict scrutiny analysis, despite the majority in Riggins arguing it did not. See Sell, 539 U.S. at 180–83; Riggins, 504 U.S. at 135–37; see also id. at 156 (Thomas, J., dissenting).

292 Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261 (1990).

293 Id. at 265–68.

294 Id. at 297 (plurality opinion). The Court decided the victim was not competent and therefore clear and convincing evidence of her wishes to forgo life-sustaining treatment did not exist. Id. at 283–84.

295 Horowitz, supra note 198, at 1727.

296 See Washington v. Glucksberg, 521 U.S. 702 (1997).

297 Id.

298 Id. at 728.

299 Id. at 721 n.17 (citing Cruzan, 497 U.S. at 278–79); see also id. at 720 (“We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.”).

300 Id. at 735.

301 See Roe v. Wade, 410 U.S. 113, 154 (1973) (citing Jacobson v. Massachusetts, 197 U.S. 11 (1905)). However, a claim could potentially be made under state law. See Ravin v. Alaska, 537 P.2d 494 (Alaska 1975) (holding the state’s constitutional right to privacy protects adult use of marijuana within personal residences from criminal prosecution). Another possible claim not discussed here is whether there is a fundamental right to “freedom of thought” that would protect the use of mind-altering substances. See Boire, supra note 21, at 234–46 (discussing this “woefully undeveloped” right).

302 Courts in Ohio and Maryland have rejected substantive due process challenges to vaccine mandates, though under the claim of a fundamental right to privacy. See Hanzel v. Arter, 625 F. Supp. 1259, 1261–63 (S.D. Ohio 1985) (finding the right to refuse vaccination is not included in the right to privacy); Syska v. Montgomery Cty. Bd. of Ed., 415 A. 2d 301, 304–05 (Md. App.1980) (denying right to privacy argument as applied to vaccine mandates).

303 Boone v. Boozman, 217 F. Supp. 2d 938, 956 (E.D. Ark. 2002). The Boone decision is discussed in more detail supra, Part IV.B.

304 Id. at 956–57. The court also rejected the contention of a fundamental right to education. Id. at 957 (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973)).

305 Id. at 956.

306 See Arde-Acquah, supra note 244, at 363–64; Horowitz, supra note 198, at 1731–33; Wood, supra note 231, at 32; Javit, Gail, Berkowitz, Deena & Gostin, Lawrence O., Assessing Mandatory HPV Vaccination: Who Should Call the Shots?, 36 J.L. Med. & Ethics 384, 392 (2008)CrossRefGoogle Scholar.

307 See generally Fact Sheet, Ctrs. for Disease Control & Prev., Genital HPV Infection (Jan. 3 2017), https://www.cdc.gov/std/hpv/hpv-factsheet-march-2017.pdf.

308 See Wood, supra note 231, at 33.

309 Id. Although Wood argued an HPV vaccine mandate would fail under the fundamental right of parents to determine their children’s upbringing, the analysis also applies to the right to refuse medical treatment. Cf. Chemerinsky, supra note 277, at 1505–06, 1519–22 (analyzing Supreme Court cases involving the right of parents to determine child upbringing and the right to refuse unwanted medical intervention under the same substantive due process lens).

310 Wood, supra note 231, at 33; see also Jacobs, supra note 15, at 192 (arguing that HPV is not transmitted in the course of normal school activities and cervical cancer does not develop until students finish school); Gostin, Lawrence O. & DeAngelis, Catherine D., Editorial, Mandatory HPV Vaccination: Public Health vs. Private Wealth, 297 JAMA 1921, 1922 (2007)CrossRefGoogle ScholarPubMed.

311 See Wood, supra note 231, at 33; see Homan, supra note 259, at 206–07 (asserting cervical cancer does not rise to the necessity standard of Jacobson). Contra Javitt, Berkowitz & Gostin, supra note 306, at 392 (“To be sure, courts would likely view the goal of preventing cervical cancer as an important public health objective.”).

312 See Wood, supra note 231, at 33.

313 See id. at 33–34.

314 See id. at 33–34; Jacobs, supra note 15, at 179 (“[C]ervical cancer is largely prevented by regular Pap tests with appropriate follow-up and treatment of women with abnormal results.”).

315 See Wood, supra note 231, at 33. Wood implies a mandate would be more narrowly tailored if it only targeted women at higher risk of HPV infection. Id. Though this would be more precise, it would potentially be subject to equal protection challenges. See Javitt, Berkowitz & Gostin, supra note 306, at 392.

316 See Wood, supra note 231, at 33. Some scholars argue that vaccination mandates are not only intended to prevent transmission of disease, particularly among schoolchildren, but further a societal interest by protecting people from disease throughout their lifetimes. See, e.g., Law, supra note 171, at n.161; Dailard, supra note 259, at 14.

317 See Wood, supra note 231, at 33; Harv. L. Rev., supra note 224, at 1838; Gostin & DeAngelis, supra note 310, at 1922.

318 See Wood, supra note 231, at 33; Harv. L. Rev., supra note 224, at 1828.

319 See Harv. L. Rev., supra note 224, at 1838.

320 Id. at 1820.

321 Id. at 1839.

322 This is not to say these vaccine mandates would necessarily fail. See Horowitz, supra note 198, at 1749; see also Adarand Constructors v. Pena, 515 U.S. 200, 237 (1995) (“[W]e wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact.’”); Winkler, supra note 276, at 864 (noting twenty-two percent of regulations infringing on rights of substantive due process survive strict scrutiny).

323 See, e.g., Boire, supra note 21, at 239–42; Mariner, Annas & Glantz, supra note 229, at 586; Osburn, supra note 13, at 180–81, 183.

324 Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905).

325 See generally Drug Facts, Nat’l Inst. on Drug Abuse, Understanding Drug Use and Addiction (Aug. 2016), https://d14rmgtrwzf5a.cloudfront.net/sites/default/files/df_understanding_drug_use_final_08_2016.pdf (“Addition is a chronic disease characterized by drug seeking and use that is compulsive, or difficult to control, despite harmful consequences.”); see also Hammer, Rachel et al., Addiction: Current Criticism of the Brain Disease Paradigm, 4 AJOB Neurosci. 27 (2013)CrossRefGoogle ScholarPubMed (reviewing contemporary criticisms of the disease model of addition).

326 See, e.g., Linder v. United States, 268 U.S. 5 (1925).

327 See, e.g., Traynor v. Turnage, 485 U.S. 535 (1988).

328 Id. at 552.

329 Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 824 (2002).

330 See Beaman, Cannizzaro & Goldman, supra note 60; see, e.g., Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (holding the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples); Lawrence v. Texas, 539 U.S. 558 (2003) (overruling Bowers v. Hardwick, 478 U.S. 186 (1986)) (striking down an ordinance criminalizing sex between two people of the same sex on due process grounds).

331 See Gonzalez, supra note 60.

332 Obesity vaccines are currently in development. See Na, Ha-Na, Kim, Hun & Nam, Jae-Hwan, Prophylactic and Therapeutic Vaccines for Obesity, 3 Clinical & Experimental Vaccine Research 37, 38 (2014)CrossRefGoogle ScholarPubMed.

333 See Am. Pub. Health Ass’n, supra note 155 (“[V]accine-preventable diseases can be a threat to our health. [The American Public Health Association] promotes immunization of the world’s children as well as throughout the lifespan.”).

334 Buck v. Bell, 274 U.S. 200, 207 (1927); see supra note 208.

335 Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); see supra note 270.

336 Sterilization would likely receive additional scrutiny under the fundamental right of procreation. Cf. Carey v. Population Servs. Int’l, 431 U.S. 678, 684–91 (1977) (applying strict scrutiny to strike down a law restricting access to contraceptives).

337 See supra note 41 (citing organizations that accept disease theory).

338 See supra Part II.C.

339 Stevenson, supra note 161, at 13.

340 Id.

341 See supra, Parts II & IV.

342 Jacobson v. Massachusetts, 197 U.S. 11, 12–13 (1905).

343 Id. at 12.

344 See Jacobson, 197 U.S. 11 (explaining that the purpose of vaccination was to prevent against the spread of smallpox, with no mention of preventing citizens from participating in subsequent activities).

345 See supra, Part III.B.

346 Stevenson, supra note 161, at 13.

347 Id. (“As a result of the vaccination, the rats stop self-administering [cocaine].”).

348 See Drugs, Brains, and Behavior, supra note 38, at 11.

349 Szalavitz, supra note 60, at 23; Kalant, supra note 63, at 77; Hart, supra note 68, at 189.

350 This is known among behavior analysts as “extinction.” MacCoun, supra note 50, at 255. “In classical conditioning, extinction occurs when a conditioned stimulus is no longer paired with unconditioned stimuli.” Id. “In operant conditioning, extinction occurs when a learned behavior no longer receives a positive reinforcement. Treatments that prevent an addictive drug from crossing the blood-brain barrier are likely to produce both types of extinction.” Id. at 255–56.

351 See Morse v. Frederick, 551 U.S. 393, 408 (2007) (noting peer pressure appears to be one of the main drivers of drug use among youth).

352 Such a vaccine mandate would also invoke the fundamental right to privacy in intimate sexual decisions. See Carey v. Population Servs. Int’l, 431 U.S. 678, 684–91 (1977).

353 Gambling addiction is listed under substance use disorders in the DSM-V. Am. Psychol. Ass’n, supra note 31, at 585.

354 If a vaccine that only prevented the development of addiction but allowed drug use was developed, the analysis would be different. This appears to be an impossibility given our current understanding of how our brains work and the close relationship of the development of addiction to normal survival brain functions.

355 Trends & Statistics, supra note 26.

356 See Quenqua, supra note 10.

357 States have the ability to enforce temporary quarantines to prevent the spread of contagious disease, which could be said to restrict legal behavior by limiting movement. Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905). This is different from enlisting your body’s immune system to permanently remove the ability to take pleasure from certain behaviors. Addiction is also not a communicable disease, at least in the traditional sense that would justify quarantine.

358 Researchers have attempted without success to create alcohol vaccines. Quenqua, supra note 10. Although a vaccine for alcohol is not in sight, there are medications that induce nausea when alcohol is ingested (e.g., disulfiram) and others aimed to reduce cravings (e.g., naltrexone). Alcohol Use Disorder: Medications, N.Y. Times (Mar. 8, 2013), http://www.nytimes.com/health/guides/disease/alcoholism/medications.html.

359 See supra note 60; see also Fox, supra note 28, at 169 n.13 (claiming heroin’s illegality partially explains differences in treatment of heroin and alcohol addiction and criminalization of certain substances is based on race and class considerations).

360 Traynor v. Turnage, 485 U.S. 535 (1988); see generally Tiger, supra note 28, at 19–21 (discussing the rise in the number of drug courts in response to addiction-related crimes, inflicting punishment for relapse and continued drug use).

361 See Powell v. Texas, 392 U.S. 514, 533 (1968).

362 See Sell v. United States, 539 U.S. 166, 177–83 (2003); Riggins v. Nevada, 504 U.S. 127, 137 (1992); Washington v. Harper, 494 U.S. 210, 226–27 (1990).

363 See Sell, 539 U.S. at 177–83; Riggins, 504 U.S. at 137; Harper, 494 U.S at 226–27 (1990).

364 See supra Part II.C.

365 Stevenson, supra note 161, at 13.

366 See Cocaine, Nat’l Inst. on Drug Abuse (June 2016), https://www.drugabuse.gov/drugs-abuse/cocaine [https://perma.cc/8GT5-5T4B]; see also Heroin, Nat’l Inst. on Drug Abuse (May 2016), https://www.drugabuse.gov/drugs-abuse/heroin [https://perma.cc/HYC6-NG8L]; Opioids, Nat’l Inst. on Drug Abuse (May 2016), https://www.drugabuse.gov/drugs-abuse/opioids [https://perma.cc/2AHF-CHJG].

367 See, e.g., Methamphetamine: How is Methamphetamine Different from Other Stimulants, Such as Cocaine?, Nat’l Inst. on Drug Abuse (Sept. 2013), https://www.drugabuse.gov/publications/research-reports/methamphetamine/how-methamphetamine-different-other-stimulants-such-cocaine.

368 See Na, Kim & Nam, supra note 332; David Mills, Will a Universal Cancer Vaccine Ever Be a Reality?, Healthline (June 9, 2016), http://www.healthline.com/health-news/will-cancer-vaccine-be-reality#1 [https://perma.cc/58EW-V2VL]. Some professionals consider HPV and Hepatitis B vaccines as cancer vaccines because they can prevent cancers caused by HPV and Hepatitis B viruses, but a universal cancer vaccine would elicit an immune response to attack cancerous cells, not a foreign virus. See Mills, supra.

369 The contention that protracted government subjection of a population to a specific act precludes a claim that a fundamental right is at stake is tenuous. For example, at the founding of this country, people could legally own slaves and only white men who owned property could vote. See History of Voting Rights, MassVote (2017), http://massvote.org/voterinfo/history-of-voting-rights/ [https://perma.cc/7HUJ-FHWN]. Freedom from enslavement and the right to vote are now considered essential liberties, though their realization required multiple Constitutional amendments. See U.S. Const. amends. XIII, XV, XIX. A more recent example is the Supreme Court’s recognition that the fundamental right to marriage includes the right of same-sex couples to marry, a holding that the Court likely would not have pronounced even a decade ago. See Obergefell v. Hodges, 135 S. Ct. 2584, 2604–05 (2015).

370 Harv. L. Rev., supra note 224, at 1820.

371 Id. at 1834.

372 Polio and the Vaccine (Shot) to Prevent It, Ctrs. for Disease Control & Prev. (Nov. 10, 2014) https://www.cdc.gov/vaccines/parents/diseases/child/polio.html [https://perma.cc/7H7F-LKJ2]; Smallpox: Transmission, Ctrs. for Disease Control & Prev. (June 7, 2016), https://www.cdc.gov/smallpox/transmission/index.html [https://perma.cc/ZDZ8-JSYZ]; Transmission of Measles, Ctrs. for Disease Control & Prev. (Mar. 31, 2015), https://www.cdc.gov/measles/about/transmission.html [https://perma.cc/42SN-Q3SA].

373 See, e.g., Tognotti, Eugenia, Lessons from the History of Quarantine, from Plague to Influenza A, 19 Emerging Infectious Diseases 254, 258 (2013)CrossRefGoogle ScholarPubMed; Roger I. Lee, Health and Disease: Their Determining Factors 209 (1917) (discussing how the two most effective approaches to the eradication of diphtheria are vaccination and quarantine).

374 See Lee, supra note 373, at 322.

375 See Centers for Disease Control and Prevention, Frequently Asked Questions: What Puts Me At Risk for HIV, Viral Hepatitis, and STDS?, GetTested National HIV, STD, and Hepatitis Testing, https://gettested.cdc.gov/content/what-puts-me-risk-hiv-viral-hepatitis-and-stds [https://perma.cc/237LU8KV].

376 See Harv. L. Rev., supra note 224, at 1820. Difficulty in convincing/empowering people to engage in safe sex and drug ingestion practices, especially among hard-to-reach populations (e.g., homeless injection drug users, sex workers), make HPV and Hepatitis B vaccination practically necessary to stop viral transmission.

377 As discussed supra Part V.A.1, viewing drug use and addiction in this manner highlights how anti-intoxicant vaccines are designed to target behavior, not the condition itself.

378 See Osburn, supra note 13, at 165–66 (describing the physiological process behind anti-intoxicant vaccines).

379 See id.

380 See Horowitz, supra note 198, at 1749.

381 See supra Part IV.B.

382 See supra Part IV.C.

383 See, e.g., Boone v. Boozman, 217 F. Supp. 2d 938, 956–57 (E.D. Ark. 2002).

384 See Stevenson, supra note 151, at 50.

385 See supra Part IV.C.

386 Nat’l Inst. on Drug Abuse, supra note 26.

387 Pew Res. Ctr., supra note 23, at 6.

388 Morse v. Frederick, 551 U.S. 393, 407 (2007) (internal quotation omitted).

389 See supra note 90 (explaining how these percentages were calculated).

390 Szalavitz, supra note 60, at 23; Kalant, supra note 63, at 77; Hart, supra note 68, at 189.

391 See supra note 93 (explaining how these percentages were calculated).

392 See Lopez-Quintero, supra note 70. Admittedly, recovery from addiction generally comes after a period of suffering.

393 Note the reference to voluntary administration. One could imagine a requirement for all people deemed addicted to submit to vaccination. Questions on the legality of this approach are outside the scope of this article. For some discussion of this issue, see Ridgely & Iguchi, supra note 21, at 294–318.

394 See Osburn, supra note 13, at 165–66.

395 Reducing the amount of people subjected to the vaccine will decrease the amount of government funds needed to make the vaccine available through insurance (e.g., Medicaid) and vaccine distribution programs.

396 See supra Part II.B.

397 See id. It could also be argued that anti-intoxicant vaccines are not narrowly tailored because they do not address all types of addiction, but this is unlikely to be a convincing legal argument. For example, addiction to gambling is generally considered to be in the same realm as drug addiction, but there is currently no vaccine in development to treat the addiction by preventing someone from gambling. But see Melanie Axelrod, Drug May Help Curb Compulsive Gambling, ABCNews, http://abcnews.go.com/Health/story?id=117563&page=1 [https://perma.cc/H7PC-ZA7P]. Professionals generally categorize addiction by the primary drug of use or behavior (e.g., heroin addiction versus cocaine addiction versus gambling addiction), creating insular conditions. See Am. Psychol. Ass’n, supra note 31 (listing each disorder separately). Further, when analogized to more traditional vaccines, this argument seems somewhat absurd. It is very unlikely that a mandate to receive a vaccine for a highly contagious and dangerous form of the flu would not be narrowly tailored because it did not immunize against all strains of influenza. This issue has been raised by scholars examining HPV vaccine mandates, as the vaccine only targets specific strains of the HPV virus that are responsible for most, but not all, cases of cervical cancer. See, e.g., Jacobs, supra note 15, at 181.

398 For an argument that an anti-intoxicant vaccine would satisfy the Jacobson test, see Osburn, supra note 13, at 180–82.

399 See, e.g., Mariner, Annas & Glantz, supra note 229, at 583–84; Hodge & Gostin, supra note 144, at 856.

400 Hodge & Gostin, supra note 144, at 856. These factors are discussed supra Part IV.A.

401 Hodge & Gostin, supra note 144, at 856 (citing Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905)). Of course, the arguments above assume that an anti-intoxicant vaccine mandate would infringe on the fundamental right to remain free of unwanted medical intervention.

402 See, e.g., Mariner, Annas & Glantz, supra note 229, at 585.

403 Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).

404 See id. at 27.

405 It could be argued that anti-intoxicant vaccines do not address a public health concern because they address a condition that affects an individual and is not contagious in the traditional sense. This argument has been made in the context of HPV vaccines. See Homan, supra note 259, at 206–07; Wood, supra note 231, at 33. However, given the impact that addiction has on public health infrastructure and the Supreme Court’s recent discussion of this issue, it is unlikely addiction would not be viewed as a public health issue.

406 Hart, supra note 68, at 189; Szalavitz, supra note 60, at 23; Kalant, supra note 63, at 77

407 See Stevenson, supra note 151, at 42–43.

408 See Jacobson, 197 U.S at 28.

409 See e.g. Stevenson, supra note 151, at 15.

410 See Ctrs. for Disease Control & Prev., Morbidity and Mortality Weekly Report: CDC Guideline for Prescribing Opioids for Chronic Pain — United States, 2016 (Mar. 18, 2016), https://www.cdc.gov/mmwr/volumes/65/rr/rr6501e1.htm [https://perma.cc/3HY7-Q678].

411 See Stix, supra note 190.

412 A less convincing argument of potential harm is that people will engage in more dangerous behaviors in response to anti-intoxicant vaccination, including using more harmful substances and/or using drugs in a more harmful way (e.g., higher quantities or more direct routes of transmission). See supra Part III.B. While this may be a side effect of anti-intoxicant vaccination, attributing this type of harm to the vaccination itself is tenuous.

413 Jacobs, supra note 15, at 201.

414 See Morse v. Frederick, 551 U.S. 393, 407 (2007).

415 See Szalavitz, supra note 25; National Study Reveals, supra note 25.

416 See Chang, supra note 1.