Friday, January 14, 2022
Katherine Hunt Federle (Ohio State University), The Child’s Right to Be Vaccinated, Ohio St. U. Sch. L. Legal Stud. (Research Paper No. 659, 2021):
Vaccine hesitancy highlights a problem within current rights constructs under U.S. law. Refusal to vaccinate is ineluctably cast as a contest between parental choice, to which the law traditionally defers, and state concerns for public safety and the individual welfare of children. But rarely is the discussion cast in terms of the child’s right to be vaccinated because our rights talk revolves around the capacity (or lack thereof) of the rights holder. If, however, we recast rights in terms of empowerment, then we can see that rights flow to the child not because she has the requisite capacity but because she is less powerful. In this sense, rights exist for children because they are children. The authority of the state to mandate immunization under U.S. law also may reconsidered because the state is acting to protect the rights of those less powerful—the children who cannot be vaccinated.