The Legislature’s Mandatory HPV Vaccine Bills Are Unconstitutional – By Ameer Benno

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

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

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

But there’s another reason to reject these bills: they run afoul of the Constitution.  

The U.S. Supreme Court has held that a state’s police power allows it, in certain circumstances, to compel vaccinations, including requiring vaccinations as a condition for school attendance. 

On the other hand, parents’ right to make decisions concerning the care of their children – including the right to control what goes into their bodies – is one that the Supreme Court long ago deemed to be fundamental.  

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

As to both prongs, the proposed HPV vaccine legislation falls short.  

While reducing the number of cervical cancer deaths in New York is a legitimate and important public health goal, it does not rank as a compelling state interest.  According to the CDC, cervical cancer was reported for only 0.008% of women in New York State in 2016 (the most current year for which data is available), and the same year, just 0.002% – that’s two-thousandths of one percent – of women in all of New York State died from it.  In other words, there’s no cervical cancer epidemic raging in the Empire State.

By comparison, at the time the smallpox vaccine was made mandatory, the annual mortality rate from the smallpox outbreak in New York City was 8000% higher, and so was the death rate from measles, whooping cough, diphtheria, and meningitis.  

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

In any event, even if driving down the number of cervical cancer deaths in New York were a compelling state interest, forcing young children to receive HPV vaccinations is unnecessary to achieve that goal.  

First, while infections from smallpox, measles, polio, tuberculosis and the like occur by inhalation of airborne contagions, HPV can only be transmitted through sexual intercourse.  Moreover, it can take decades for an HPV infection to cause cervical cancer, if it ever does.  Vaccinating against HPV is therefore not essential to contain an imminent public health crisis.  

Second, because sexually transmitted diseases are preventable through lifestyle and behavioral choices that can be taught, injecting pathogens into children’s bodies is needless.  

Third, the HPV vaccine only protects against some strains the virus.  Thus, even with the vaccine, a woman can still contract a strain that can lead to cancer down the road. 

Nor is compulsory HPV vaccination a narrowly tailored means of reducing the overall incidence of cervical cancer.  


 Ameer Benno is a Constitutional Law attorney and former Republican Congressional candidate in the NY-4.  He can be reached at  Follow him on Twitter at @ameerbenno

To begin, making the HPV vaccine mandatory for elementary school students does not mean that fewer adult women will die of cervical cancer in New York.  We have no idea what percentage of school children who receive the vaccine will remain in New York throughout adulthood, nor do we know how many women will move to New York as adults having never received an HPV vaccine.      

Most of the time, HPV goes away on its own without creating any health problems.  Only a small percentage of women whose bodies can’t clear the virus on its own – estimated at about 10% – are at risk for developing cervical cancer, and only a fraction of them actually ever do.  Requiring all students – including male students, who don’t even have a cervix – to receive this vaccination is anything but narrowly tailored.  

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

To be sure, the HPV vaccine appears to be effective in preventing many strains of HPV that can lead to cervical cancer, and it may very well be advisable to take.   

But that’s not the point.

The point is that the decision whether to administer this vaccine to a child, regardless of its efficacy, should rest exclusively with the child’s parents – not with the government.  This is especially true given that there are reported health risks associated with HPV vaccine, including chronic regional pain syndrome, cognitive dysfunction, and infertility in young women.  

Justice Louis Brandeis famously stated that the greatest dangers to liberty come from government decision-makers who are “well-meaning but without understanding.”  Sadly, too many of our State legislators, while perhaps well-intentioned, are woefully uneducated about the Constitution and the limits of state power.   

If only there was a vaccine for that.


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