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Recent Developments in Health Law

Published online by Cambridge University Press:  01 January 2021

Ching Ping Ang ,
Joseph Wolpin  and
Elisha Baron
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Extract

As of July 1, 2008, females aged 11-26 years seeking status as permanent residents in the United States must produce documentation that they have received the human papillomavirus (HPV) vaccine before the U.S. Citizenship and Immigration Services will approve their status adjustment. Immigration rights activists and public health officials have objected to this new requirement on the grounds that it is unnecessary and imposes unreasonable barriers to lawful immigration due to its expense. The Supreme Court has generally upheld mandatory vaccination requirements for citizens and non-citizens and has tolerated federal immigration regulations that would be unconstitutional if applied to citizens. However, the HPV vaccination requirement may be arbitrary, unnecessary, and discriminatory as applied to green card applicants who pose no greater threat to public health than citizens who are not subject to the same requirements. Furthermore, the requirement may also impose unreasonable restraints on aliens individual liberties as well as real barriers to immigration.

Type
JLME Column
Information
Journal of Law, Medicine & Ethics , Volume 37 , Issue 1 , Spring 2009 , pp. 149 - 159
Copyright
Copyright © American Society of Law, Medicine and Ethics 2009

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References

References

Memorandum from Division of Global Migration and Quarantine (DGMQ) to Civil Surgeons, “2008 Revised Vaccination Technical Instructions for Civil Surgeons,” available at <http://www.cdc.gov/ncidod/dq/civil_ti_vacc.htm> (last visited January 13, 2009).+(last+visited+January+13,+2009).>Google Scholar
Food and Drug Administration, U.S. Food and Drug Administration, FDA Licenses New Vaccine for Prevention of Cervical Cancer and Other Diseases in Females Caused by Human Papillomavirus, Press Release, June 8, 2006, available at <http://www.fda.gov/bbs/topics/NEWS/2006/NEW01385.html> (last visited January 13, 2009).+(last+visited+January+13,+2009).>Google Scholar
Centers for Disease Control and Prevention, CDC's Advisory Committee Recommends Human Papillomavirus Virus Vaccination, Press Release, June 29, 2006, available at http://www.cdc.gov/od/oc/media/pressrel/r060629.htm (last visited December 18, 2008).Google Scholar
Centers for Disease Control & Prevention (CDC), “Quadrivalent Human Papillomavirus Vaccine: Recommendations of the Advisory Committee on Immunization Practices (ACIP),” Morbidity and Mortality Weekly Report 56, no. RR-2 (2007): 1–24, at 4, available at <http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5602a1.htm> (last visited January 13, 2009)+(last+visited+January+13,+2009)>Google Scholar
Id., at 5.Google Scholar
One study indicated that 14.3% of women aged 18–25 years with one lifetime sex partner, 22.3% with two lifetime sex partners, and 31.5% with more than three lifetime partners (33) had HPV infection. Id., at 3.Google Scholar
Id.Google Scholar
Note, , “Toward a Twenty-First Century Jacobsen v. Masschusetts,” Harvard Law Review 121 (2008): 1820–1841. “When it comes to vaccine policy, the Advisory Committee on Immunization Practices (ACIP) sets the agenda. Congress established the group to advise the Centers for Disease Control and Prevention (CDC). Based on the ACIP's advice, the CDC recommends vaccine policy to the states. Although the CDC's recommendations are not binding, nearly all states choose to follow them.” Id.Google Scholar
National Conference of State Legislatures, “HPV Vaccine,” November 18, 2008, available at <http://www.ncsl.org/programs/health/HPVvaccine.htm> (last visited January 13, 2009).+(last+visited+January+13,+2009).>Google Scholar
Senate Bill No. 722 (Va. 2008) (unenacted), available at <http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+SB722> (last visited January 13, 2009).+(last+visited+January+13,+2009).>Google Scholar
8 U.S.C.A. §1182 (1996).Google Scholar
Jordan, M., “U.S. News: Gardasil Requirement for Immigrants Stirs Backlash — Advocates, Experts Criticize U.S. Move to Mandate Vaccine,” Wall Street Journal, October 1, 2008, at A10.Google Scholar
8 U.S.C.A. §1182 (1996).Google Scholar
INS Provides Supplementary Guidance on Vaccination Requirements, 74 No. 42 Interpreter Releases 1682, 1684 (November 3, 1997).Google Scholar
See Jordan, , supra note 12.Google Scholar
Id.Google Scholar
Id.Google Scholar
The Public Health Service General Powers and Duties Quarantine and Inspection: Regulations to Control Communicable Diseases, 42 U.S.C. § 264 (2002).Google Scholar
See Campagnie Fracaise de Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380, 385 (1902). The Supreme Court held that the Louisiana Board of Health had the authority, under statute, to “exclude healthy persons from a locality infested with a contagious or infectious disease, and that this power was intended to apply as well to persons seeking to enter the infected place, whether they came from without or from within the state” and that this statute was consistent with the United States Constitution. Id.Google Scholar
See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 (1905). The Supreme Court held that mandatory vaccines were subject to a test of reasonableness. Although the Supreme Court specified that this ruling applied only to the specific question of whether the smallpox vaccine could be mandated, the case has been used to support a wide range of public health measures.Google Scholar
Id., at 30.Google Scholar
See Adams v. City of Milwaukee 228 U.S. 572 (1913); Zucht v. King, 260 U.S. 174, 177 (1922).Google Scholar
Blum, J. D. Talib, N., “Balancing Individual Rights v. Collective Good in Public Health Enforcement,” Medicine and Law 25 (2006): 273. Following the Jacobsen formula, the viability of mandatory childhood vaccine programs would depend on whether such efforts would be seen by courts as necessary, reasonable, proportional, and safe for the participants. Id.Google Scholar
See “Toward a Twenty-First Century Jacobsen v. Masschusetts,” supra note 8.Google Scholar
Id.Google Scholar
House Bill No. 2035 (Va. 2007) (unenacted), available at <http://leg1.state.va.us/cgi-bin/legp504.exe?071+sum+HB2035> (last visited January 13, 2009).+(last+visited+January+13,+2009).>Google Scholar
See National Conference of State Legislatures, supra note 9. “The CDC announced that the HPV vaccine is available through the Federal Vaccines for Children (VFC) program in all 50 states, Chicago, New York, Philadelphia, San Antonio and Washington DC. VFC provides vaccines for children ages nine to 18 who are covered by Medicaid, Alaskan-Native or Native American children, and some underinsured or uninsured children.”28. See CDC, supra note 4, at 15.Google Scholar
See Jacobson, supra note 20. “[I]t might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.”30. See Adams, supra note 22, at 822. The Supreme Court in Adams justified requiring different testing standards for cows outside of Milwaukee and those inside the city saying, “The requirements are not unreasonable; they are properly adaptive to the conditions. They are not discriminatory; they have proper relation to the purpose to be accomplished.”31. Where there is an indication that a certain group of citizens poses a great threat to public health, it may be appropriate to apply vaccine mandates to that group. Although you could argue that a class of immigrants is not similarly situated (as explained in Jacobson) to citizens, for the purpose of the HPV vaccine, unless some justification can be advanced for requiring the vaccine for immigrants and not for citizens, it appears arbitrary or, worse, discriminatory.Google Scholar
Wong Wai v. Williamson, 103 F. 1, 3 (C.C.D. 1900).Google Scholar
Javitt, G. Berkowitz, D. Gostin, L. O., “Assessing Mandatory HPV Vaccination: Who Should Call the Shots?” Journal of Law, Medicine & Ethics 36, no. 2 (2008): 384–392, at 392.CrossRefGoogle Scholar
Gruskin, S. Loff, B., “Do Human Rights Have a Role in Public Health Work?” The Lancet 360 (2002): 1880.CrossRefGoogle Scholar

References

The terms “medical deportation” and “medical repatriation” often have been used interchangeably by the press and public when discussing this issue. Because “deportation” carries specific immigration law connotations, I use “repatriation,” a more neutral word denoting a return to the country of origin. Also, I use “alien” and “non-citizen” interchangeably to refer generally to non-U.S. citizens and “immigrant” to those holding U.S. permanent residency.Google Scholar
See Sontag, D., “Immigrants Facing Deportation by Hospitals,” New York Times, August 3, 2008. See also, Sontag, D., “Deported in a Coma, Saved Back in U.S.,” New York Times, November 8, 2008.Google Scholar
Id.Google Scholar
Costich, J., “Legislating a Public Health Nightmare: The Anti-Immigrant Provisions of the ‘Contract With America’ Congress,” Kentucky Law Journal 90 (2001–2002): 1043–1070, at 1052.Google Scholar
See Sontag, , supra note 2.Google Scholar
Id. (describing the personal stories of several immigrants whose medical condition deteriorated rapidly after being repatriated to their native countries in South America).Google Scholar
CMA House of Delegates Res. 105–08a (October 6, 2008).Google Scholar
CMA House of Delegates Proposed Res.105–08, Forced Repatriation of Immigrants by Hospitals (2008).Google Scholar
AMA House of Delegates Proposed Res. 4 (I-08), Forced Repatriation of Immigrants by Hospitals (2008).Google Scholar
AMA House of Delegates, Report of Reference Committee on Amendments to Constitution and Bylaws (2008).Google Scholar
See Sontag, , supra note 2; see also, “Doctors Study Repatriation of Uninsured,” New York Times, November 11, 2008, at A18.Google Scholar
See supra notes 7, 9, and 10.Google Scholar
See Montejo v. Martin Memorial Medical Center, Inc., 935 So. 2d 1266 (Fla. Dist. Ct. App. 2006); the case has been remanded and a jury trial on the false imprisonment action is likely to occur in spring 2009. Personal communication from Jack Scarola to author, November 25, 2008.Google Scholar
See Montejo v. Martin Memorial Medical Center, Inc., 874 So. 2d 654 (Fla. Dist. Ct. App. 2004).Google Scholar
MexCare Press Release, available at <http://mexcare.com/press_release.html> (last visited January 13, 2009).+(last+visited+January+13,+2009).>Google Scholar
For instance, threatening undocumented patients of notifying immigration authorities if they do not consent to repatriation.Google Scholar
Among the many possible immigration consequences that could follow a medical repatriation, permanent residents might find themselves unable to reenter the U.S. after leaving its borders under certain circumstances. See U.S.C. §1101(a)(13)(C) (1993).Google Scholar
See INS v. St. Cyr 533 U.S. 289, 322 (citing state statues with these requirements).Google Scholar
Personal communication from Jack Scarola (lead attorney in Montejo case; see supra note 13) to author November 25, 2008.Google Scholar
See Sontag, , supra note 2 (noting that un-reimbursed care for uninsured alien patients can cost hospitals millions of dollars).Google Scholar
Gray, S., “Deported Ghanaian Dies of Cancer,” Guardian.co.uk, available at <http://www.guardian.co.uk/uk/2008/mar/20/immigration.immigrationandpublicservice> (last visited January 13, 2009).+(last+visited+January+13,+2009).>Google Scholar
Editorial, “Migrant Health: What Are Doctors' Leaders Doing?” The Lancet 371, no. 9608 (2008): 178.CrossRefGoogle Scholar
8 U.S.C. §1611 (1996).Google Scholar
8 U.S.C. §1613 (1996); see U.S.C. § 1613(b) for exceptions.Google Scholar
See 8 CFR §213a.2; family-based immigrants represent the largest group requiring the affidavits of support, however, other smaller classes of immigrants must provide them as well.Google Scholar
See 8 U.S.C. §1183a.Google Scholar
Costich, supra note 9 at 1049.Google Scholar
See Ku, L., “Reducing Disparities in Health Coverage for Legal Immigrant Women and Children,” Center on Budget and Policy Priorities, April 20, 2007.Google Scholar
42 U.S.C. §1395dd (1986).Google Scholar
42 U.S.C. §1395dd(e)(3)(A).Google Scholar
See 42 CFR §482.43.Google Scholar
42 CFR §82.43(d).Google Scholar
59 Fed. Reg. 64149.Google Scholar
See 874 So. 2d 654, supra note 14 (holding that a letter from a doctor in the foreign facility promising to provide adequate care was inadmissible hearsay evidence).Google Scholar
See AMA House of Delegates, supra note 10.Google Scholar
Personal communication from Dr. Robert J. Margolin to author, November 25, 2008.Google Scholar

References

Public Health Code, Act 368 of 1978, MCL § 333.2685, 333.2687, 333.2692.Google Scholar
Citizens Research Council of Michigan, Proposal 2008–02 Human Embryonic Stem Cell Research, Report 353, October 2008.Google Scholar
Proposal 2 summarizes the amendment to the Michigan Constitution thus: “The proposed constitutional amendment would: Expand use of human embryos for any research permitted under federal law subject to the following limits: The embryos – are created for fertility treatment purposes; – are not suitable for implantation or are in excess of clinical needs; – would be discarded unless used for research; – were donated by the person seeking fertility treatment.Google Scholar
Provide that stem cells cannot be taken from human embryos more than 14 days after cell division begins.Google Scholar
Prohibit any person from selling or purchasing human embryos for stem cell research.Google Scholar
Prohibit state and local laws that prevent, restrict or discourage stem cell research, future therapies and cures.” Ballot Wording approved by the Board of State Canvassers, August 21, 2008, available at <http://www.michigan.gov/documents/sos/Approved_Bal_Word_Stem_Cell821_246350_7.pdf> (last visited January 13, 2009); also see the actual amendment text, available at <http://crcmich.org/election/proposal200802.pdf> (last visited January 13, 2009).+(last+visited+January+13,+2009);+also+see+the+actual+amendment+text,+available+at++(last+visited+January+13,+2009).>Google Scholar
See supra note 1, at § 333.2691.Google Scholar
See supra note 1, at § 333.16274 and 333.16275.Google Scholar
The Michigan Penal Code, Act 328 of 1931, MCL § 750.430a.Google Scholar
Kaiser Family Foundation, State Funding of Embryonic and Fetal Research, as of January 2008, available at <http://www.statehealthfacts.org/comparetable.jsp?ind=112&cat=2> (last visited December 4, 2008); National Conference of State Legislatures, “Stem Cell Research,” as of January 2008, available at <http://www.ncsl.org/programs/health/Genetics/embfet.htm> (last visited January 13, 2009).+(last+visited+December+4,+2008);+National+Conference+of+State+Legislatures,+“Stem+Cell+Research,”+as+of+January+2008,+available+at++(last+visited+January+13,+2009).>Google Scholar
Michigan Citizens for Stem Cell Research and Cures, Michigan's Current Laws, available at <http://www.stemcellresearchformichigan.com/currentlaw.html> (last visited December 28, 2008). (last visited December 28, 2008).' href=https://scholar.google.com/scholar?q=Michigan+Citizens+for+Stem+Cell+Research+and+Cures,+Michigan's+Current+Laws,+available+at++(last+visited+December+28,+2008).>Google Scholar
Michigan Citizens Against Unrestricted Science & Experiment, “The Proposal,” available at <http://www.micause.com/theproposal.html> (last visited January 13, 2009).+(last+visited+January+13,+2009).>Google Scholar
Ballotpedia, s.v. “Michigan Stem Cell Initiative (2008),” available at <http://ballotpedia.org/wiki/index.php/Michigan_Stem_Cell_Initiative_(2008)> (last visited January 13, 2009).+(last+visited+January+13,+2009).>Google Scholar
Pesick, J. Z., “State Rep May Put Stem-Cell Legislation on Next Year's Ballot,” The Michigan Daily, July 10, 2005.Google Scholar
See supra note 10.Google Scholar
See supra note 2.Google Scholar
Id., also see Johnson, J. A. Williams, E. D., “Stem Cell Research: State Initiatives,” CRS Report for Congress, May 19, 2006.Google Scholar
For California, see the full text of Proposition 71, available at <http://www.sos.ca.gov/elections/bp_nov04/prop_71_entire.pdf> (last visited January 13, 2009); for Missouri, see the full text of the ballot measure, available at <http://www.sos.mo.gov/elections/2006ballot/> (last visited January 13, 2009).+(last+visited+January+13,+2009);+for+Missouri,+see+the+full+text+of+the+ballot+measure,+available+at++(last+visited+January+13,+2009).>Google Scholar
The Singapore Bioethics Advisory Committee's Report on Ethical, Legal and Social Issues in Human Stem Cell Research, Reproductive and Therapeutic Cloning (2002), available at <http://www.bioethics-singapore.org/uploadfile/55543%20PMBAC%20Paper%20-%20Chapter%207.pdf> (last visited January 13, 2009). (last visited January 13, 2009).' href=https://scholar.google.com/scholar?q=The+Singapore+Bioethics+Advisory+Committee's+Report+on+Ethical,+Legal+and+Social+Issues+in+Human+Stem+Cell+Research,+Reproductive+and+Therapeutic+Cloning+(2002),+available+at++(last+visited+January+13,+2009).>Google Scholar
For Singapore, see id.; for the United Kingdom, see The Human Fertilization and Embryology Act 1990 and The Human Fertilization and Embryology (Research Purposes) Regulations 2001.Google Scholar
Gibson, S., “Uses of Respect and Uses of the Human Embryo,” Bioethics 21 (2007): 370–378, at 377.CrossRefGoogle Scholar
See supra note 9.Google Scholar
See supra note 3.Google Scholar
Satyanarayana, M., “Michigan Looks to Codify Pot, Stem-Cell Laws,” Detroit Free Post, November 6, 2008.Google Scholar
Ballotpedia, s.v. “Missouri Stem Cell Limitation Initiative 2008,” available at <http://ballotpedia.org/wiki/index.php/Missouri_Stem_Cell_Prohibition_Initiative_(2008)> (last visited January 13, 2009).+(last+visited+January+13,+2009).>Google Scholar
Proposition 71 established a constitutional right in California that facilitated embryonic stem cell research; earlier in 2002, California had already enacted the nation's first law that expressly permitted embryonic stem cell research (California Health and Safety Code § 123440, 24185, 2115–7, 125300–320).Google Scholar
Blank, C., “Mo. Judge Dismisses Stem Cell Research Lawsuit,” Associated Press, November 13, 2008.Google Scholar
Blank, C., “Missouri Stem Cell Research Critics Refile Lawsuit,” Associated Press, December 10, 2008.Google Scholar
Pending the resolution of the lawsuits, California was still able to procure some funding from various sources: See Johnson, Williams, , supra note 14.Google Scholar
Longaker, M. T. Baker, L. C. Greely, H. T., “Proposition 71 and CIRM — Assessing the Return on Investment,” Nature Biotechnology 25 (2007): 513–521, at 519.CrossRefGoogle Scholar
While proponents of Proposal 2, such as Sean Morrison from the University of Michigan Center for Stem Cell Biology, “expect in the short-term millions of new dollars of grants to come from the federal government and private foundations to support the expanded research” (see The Associated Press, “Michigan Voters Approve Stem Cell Research Measure,” November 5, 2008), others have cautioned against expecting a surge in federal funding (see Reynolds, J., RIP: Stem Cells in Politics (2002–2008), Center for Genetics and Society Weblog, November 5, 2008, available at <http://www.biopoliticaltimes.org/article.php?id=4355> (last visited January 13, 2009)).Google Scholar
Naik, G. Hotz, R. L., “Obama's Promise on Stem Cells Doesn't Ensure New War on Disease,” Wall Street Journal, November 25, 2008.Google Scholar
Levine, A. D., “Policy Considerations for States Supporting Stem Cell Research: Evidence from a Survey of Stem Cell Scientists,” Public Administration Review 68 (2008): 681–694, at 689–90.CrossRefGoogle Scholar
Id., at 690.Google Scholar
The survey showed that these factors were important to both principal research investigators and less senior researchers, such as post-doctoral and graduate students; id., at 689.Google Scholar
Id., at 691.Google Scholar
Proponents of Proposal 2 have averred that they support safe and ethical research, though they rely on federal law for oversight; see Curemichigan.com, “Facts,” available at <http://www.curemichigan.com/facts.php> (last visited January 13, 2009).+(last+visited+January+13,+2009).>Google Scholar
See supra note 3.Google Scholar
Werner, M. Smith, H., Oversight from Bench to Bedside, Science Progress, August 25, 2008, available at <http://www.scienceprogress.org/2008/08/oversight-from-bench-to-bedside/> (last visited January 13, 2009).+(last+visited+January+13,+2009).>Google Scholar
Committee on Guidelines for Human Embryonic Stem Cell Research and National Research Council, Guidelines for Human Embryonic Stem Cell Research (Washington, D.C.: The National Academies Press, 2005): at 79.Google Scholar