Notes Why Mandatory Vaccination of Males against Hpv Is Unconstitutional: Offering a New Approach to an Old Problem

The test of whether a proposed mandatory vaccination program is constitutional needs updating. Jacobson v. Massachusetts, decided by the U.S. Supreme Court over a century ago, laid out the proper reasoning and concerns to be addressed when determining the legality of mandatory vaccinations, but its analysis is tailored to the extreme case of the smallpox epidemic. As more vaccinations are created to address decreasingly pressing needs, it becomes clear that because of the liberty interests involved when requiring their use, vaccinations should not be made mandatory simply because they can be created. Scientific possibility does not create individual necessity. A new test must seek to address the evolving subtleties related to the use of vaccinations while still maintaining the fundamental reasoning of Jacobson. This Note introduces the Modified Hand Formula, a new test that balances the key competing concerns inherent in any discussion of the constitutionality of mandatory vaccinations. The Modified Hand Formula asks whether the “Burdens” associated with implementing mandatory vaccination—both social economic burdens and the personal burden of sacrificing constitutionally protected liberty interests— exceed the reduction in “Probable Loss,” the lessening of human costs, achieved by such a program. The importance of developing a new test is underscored by a recent rise in discussion regarding mandatory vaccination for human papillomavirus (“HPV”). In June 2006, the Food and Drug Administration (“FDA”) approved and licensed Gardasil, manufactured by Merck, the first vaccine developed to prevent the transmission of HPV. With FDA approval for women finalized in